Opinion
43908.
SUBMITTED SEPTEMBER 6, 1968.
DECIDED SEPTEMBER 27, 1968.
Action on bond. Floyd Superior Court. Before Judge Scoggin.
Clary Kent, Horace T. Clary, for appellant.
Greene Greene, William B. Greene, Wright, Walther Morgan, Robert G. Walther, for appellee.
Where the question involved concerns whether a surety is liable under a warden's bond and there is a showing that the warden's subordinate was guilty of wrongful acts committed colore officii, as by failure to perform or by improper or neglectful performance of duties imposed by law, the trial judge did not err in denying the surety's motion for summary judgment.
SUBMITTED SEPTEMBER 6, 1968 — DECIDED SEPTEMBER 27, 1968.
Jean J. Mauldin brought suit in Floyd Superior Court against Fidelity-Phenix Insurance Company as surety on the bond of C. M. Caldwell, Warden of Floyd County Public Works Camp. The complaint alleged that the plaintiff is the widow of Wayne K. Mauldin who died as a result of a dynamite explosion on May 21, 1964; that Caldwell as Warden of Floyd County Public Works Camp had executed a warden's bond as provided by law with Fidelity (at that time Metropolitan Casualty Insurance Company of New York) as surety, which bond was in effect at the time of Mauldin's death on May 21, 1964; that at that time Mauldin was a prisoner in the Floyd County Public Works Camp and was subject to the rules and regulations and orders of the warden and guards; that W. L. Umphrey was a duly appointed guard at the public works camp under the supervision of Caldwell and was acting in such capacity.
The complaint set out that on the morning of May 21, 1964, Mauldin was working in the rock quarry operated by the public works camp and that he and a fellow prisoner Eugene Reed were ordered to load dynamite into a hole which had been drilled in a rock ledge; that after approximately nine sticks had been placed in the hole the dynamite "hung up" and in order to dislodge it W. L. Umphrey, the guard, ordered Mauldin to "shuck" 25 additional sticks of dynamite and pour it into the hole, which action failed to dislodge the "hung up" dynamite; that Umphrey, even though he was well aware of the fact that using a drill would cause the dynamite to explode, directed Mauldin and Reed to pick up a drill and place it in the hole containing the dynamite and commanded them to force the drill into the hole against the dynamite "with all their force" so as to dislodge the "hung up" dynamite; that the deceased complied with the order of the guard and the striking of the drill against the dynamite caused it to explode, resulting in his death.
The complaint charged that Mauldin's death was caused by the complete disregard for his safety by the guard Umphrey "who well knew the dangers involved"; that Umphrey's actions were in direct violation of certain described rules and regulations governing Georgia's penal system as adopted by the State Board of Corrections; that the acts of Umphrey constituted an unfaithful performance of his duty as a prison guard and as a subordinate of Warden Caldwell and that, as a result, the warden's bond on which Fidelity was the surety was breached; that the plaintiff was injured and damaged in the amount of $10,000 for the breach of the conditions of the bond and is entitled to recover that amount from the surety Fidelity.
The defendant filed an answer to the complaint and subsequently filed a motion for summary judgment. In support of the motion for summary judgment was attached the affidavit of Warden Caldwell which recited that the guard Umphrey was employed by the governing authorities of Floyd County prior to the time Caldwell became warden; that at the time of Mauldin's death Caldwell was absent from the prison and a deputy warden was acting in his place; that Mauldin and Reed the other prisoner were volunteers on the job and well aware of the dangers involved in working with dynamite.
In response to the motion for summary judgment the plaintiff introduced the affidavit of Eugene Reed who stated that he and the deceased had not volunteered for the job and acted under the direct command of Umphrey in using the iron drill which caused the explosion. The trial judge after consideration of the affidavits and pleadings denied the motion for summary judgment. Upon his certification that under Code Ann. § 81A-156 (Ga. L. 1966, pp. 609, 660; Ga. L. 1967, pp. 226, 238) the judgment should be subject to review on direct appeal, we now consider the case.
The appellant contends that as a matter of law the plaintiff could not maintain the action against it. The appellant urges that a surety's engagement rests on the same legal obligation as is by law imposed on the officer and that the surety may plead anything which the officer might plead in his denial of liability on the bond; that public officers, when acting within their duty and authority, are not liable for their acts unless such are wilful, malicious and reckless with wanton disregard for the safety or rights of others. 43 AmJur 181, Public Officers, § 407; Vickers v. Motte, 109 Ga. App. 615 ( 137 S.E.2d 77). See City of Atlanta v. Hurley, 83 Ga. App. 879, 881 ( 65 S.E.2d 44). From this he concludes that if a public officer is not liable for an act of misfeasance or nonfeasance when acting within the scope of his authority, he would not be liable for a subordinate's act performed within the same scope of authority.
There is no merit in this contention. Code Ann. § 77-316 (Ga. L. 1956, pp. 161, 176; Ga. L. 1957, pp. 477, 481) provides that the State Board of Corrections shall require a warden to execute a bond in an amount not less than $10,000 conditioned upon: (1) his faithfully accounting for all funds in his custody and (2) his truly and faithfully discharging all the duties imposed upon him by law or the rules and regulations of the State Board of Corrections. The Act further provides: "All bonds given under this section shall be liable for any breach of the conditions herein provided by a deputy, agent, or subordinate of such principal, whether expressed therein or not, and all such bonds shall be subject to and governed by all the provisions of Chapter 89-4, as now existing or as may hereafter be amended, which are not in conflict with the provisions of this section." Code Ann. § 77-316 (2c). "Suits on bonds taken from public officers may be brought by any person aggrieved by the official misconduct of the officer, in his own name, in any court in this State having jurisdiction thereof, without an order for that purpose." Code Ann. § 89-420 (Ga. L. 1959, pp. 411, 412). "Every official bond executed under this Code is obligatory on the principal and sureties thereon. . . For the use and benefit of every person who is injured, either by any wrongful act committed under color of his office or by his failure to perform, or by the improper or neglectful performance of those duties imposed by law." Code Ann. § 89-418 (4).
Our courts have consistently held that a sheriff is liable for the torts of his deputy committed in the performance of his official duty and that the surety on the sheriff's official bond is likewise liable. Hawkins v. National Surety Corp., 63 Ga. App. 367 (1) ( 11 S.E.2d 250); Standard Surety c. Co. of N. Y. v. Johnson, 74 Ga. App. 823 (3) ( 41 S.E.2d 576). As held in Robertson v. Smith, 16 Ga. App. 767 (1) ( 85 S.E.2d 991): "A sheriff's bond is obligatory on the principals and sureties thereof for any breach of the condition by a deputy, although not expressed, unless otherwise declared by law, and for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by failure to perform, or by the improper or neglectful performance of those duties imposed by law."
The appellant contends that the cases involving a sheriff's bond are not applicable because the law specifically provides that the bonds are conditioned upon faithful performance by the sheriff and their deputies or jailers. Code § 24-2805, as amended (Ga. L. 1965, p. 448), and § 24-2812. This argument apparently overlooks the fact that, under Code Ann. § 77-316, above cited, the warden's bond is obligatory on the principal and surety thereof for any breach of the conditions by a deputy, agent or subordinate of the principal. Thus, it is apparent that the cases involving sheriff's bonds are directly analogous to the situation in the instant case.
It appears from the facts in this case that the warden was covered by a bond on which Fidelity was the surety at the time of the acts complained of; that the guard Umphrey was a subordinate of Caldwell, the warden, within the meaning of Code Ann. § 77-316; that Umphrey acted wilfully and in complete disregard of the safety of the deceased Mauldin (under the plaintiff's theory of this case although the defendant disputed this fact); that this constituted a failure to discharge a duty imposed upon him by the regulations of the State Board of Corrections and was a wrongful act committed under color of office or, at least, an improper or neglectful performance of duties imposed by law. For cases involving the duty of jailers or custodians to inmates or prisoners see: Kendrick v. Adamson, 51 Ga. App. 402 (1, 2) ( 180 S.E. 647); Chadwick v. Stewart, 94 Ga. App. 329 (2, 3) ( 94 S.E.2d 502); Thomas v. Williams, 105 Ga. App. 321, 326 ( 124 S.E.2d 409); Irwin v. Arrendale, 117 Ga. App. 1, 3 ( 159 S.E.2d 719). Thus, the trial judge did not err in denying the motion for summary judgment.
Judgment affirmed. Bell, P. J., and Hall, J., concur.