Summary
bonding company liable where sheriff engaged in unlawful entry of home and illegal arrest
Summary of this case from Thompson v. SpikesOpinion
33273.
DECIDED MARCH 6, 1951.
Complaint on bond; from Johnson Superior Court — Judge Rowland. July 13, 1950.
Emory S. Rowland, Randall Evans Jr., for plaintiff.
Nelson Nelson, George W. Westmoreland, Harris, Chance McCracken, for defendants.
1. The right of the people to be secure in their persons, houses, papers, and effects includes the right of privacy, and is a natural right guaranteed by the Constitution and laws of this State. Where such right is wilfully and intentionally violated with resulting damage to the plaintiff, a cause of action accrues.
2. (a) Where a wrongful act is committed under color of his office by a public officer, who is under bond, an action may be maintained against such officer individually for the wrongful act, or he may be sued individually directly upon the bond, or he may be sued jointly with the surety directly upon the bond. Where, however, suit is brought directly upon the bond against such officer or such officer and his surety, it is an action ex contractu, and, although the language of the petition allege the commission of the wrongful act, this is simply for the purpose of showing the breach of the contract of suretyship, and the action is not by such allegations converted into an action ex delicto.
(b) A mere communication made by the sheriff of one county to the sheriff of another county, requesting the arrest of a named person, is not sufficient ground upon which to predicate a suit against the sheriff making such request, where it appears that at the time the arrest was made no warrant for the arrest of such person was in existence, since the law makes provision for the arresting officer to first obtain a warrant, and where it does not appear that the sheriff making such request himself did or counseled any wrongful act on the part of such officer or should have reasonably foreseen that an illegal arrest would in fact be made.
(c) Causes of action ex contractu and ex delicto may not be joined in the same suit.
3. Where an action is brought against two or more codefendants in a county in which only one is a resident or has a place of doing business, and it appears that as to that defendant no cause of action is set out, the court is without jurisdiction of the remaining defendants.
DECIDED MARCH 6, 1951.
Mrs. Robert H. Walker filed in the Superior Court of Johnson County, Georgia, an action against M. Gary Whittle, as Sheriff of Richmond County, Georgia, in his representative capacity, American Surety Company of New York, as surety on his official bond, John B. Brooks, as Sheriff of Jackson County, Georgia, in his representative capacity, and United States Fidelity Guaranty Company, as surety on his official bond, which surety company had an agent in Johnson County upon whom service might be made, the petition alleging the following: On or about December 15, 1949, the said Whittle, acting by and through his deputies and agents as Sheriff of Richmond County, Georgia, and under color of his office, received a communication from the office of the said Sheriff Brooks of Jackson County, Georgia, it being a request that Robert H. Walker be arrested and placed in jail, and having been made under the authority of the said Sheriff Brooks, as such sheriff and under color of his office, who was as such sheriff responsible for sending such communication to the said Sheriff of Richmond County, Georgia, and for the acts of the said sheriff hereinafter set forth. At the time of making such request, no warrant was furnished the said Whittle or his deputies. On the said date, the plaintiff and her husband, Robert H. Walker, resided at 2607 McKibben Street in the City of Augusta, Richmond County, Georgia, and at no time had her husband ever committed any crime or misdemeanor in Jackson County, Georgia, no criminal warrant had ever been issued for him in such county, and the Sheriff of Jackson County had no process of any kind against him, and neither did the Sheriff of Richmond County have any lawful process or warrant against him. During the nighttime and in the early hours of December 16, 1949, and at about 1 o'clock, a. m., several deputy sheriffs of Richmond County — whose names are unknown to the plaintiff but well known to the defendant Whittle — acting by and under his authority, and accompanied by military policemen and city policemen — whose names are unknown to the plaintiff but well known to the said Whittle and his deputies — and with two automobiles and in such fashion as to alarm and awaken the people in the neighborhood, came to the home of the plaintiff and peremptorily invaded her household without any right or authority and took physical possession and control of her husband, and without offering him an opportunity to confer with counsel or to arrange bond placed him inside the Richmond County jail, where they held him until approximately 11 o'clock a. m. on December 16, 1949.
In committing such acts the rights of the plaintiff, under the Constitution of the United States (Code, § 1-804) and under the Constitution of this State (Code, Ann., § 2-116), to be secure in her person and house against unreasonable searches and seizures, and against being subjected to arrest in a criminal case except upon probable cause supported by oath or affirmation, particularly describing the place to be searched and person to be seized, were violated, and her right of privacy was violated, and the said acts constituted a wilful and positive tort against her. The said deputy sheriffs and agents of the said Whittle, as Sheriff of Richmond County, were acting under color of their offices as such deputies of the said sheriff, and were acting by virtue of their said offices in arresting and imprisoning the plaintiff's husband. When the plaintiff was finally able to communicate with an attorney, the sheriff's deputies dismissed her husband and turned him out of the Richmond County jail, stating that there was a mix-up and a case of mistaken identity and that the wrong man had been arrested. The plaintiff brings this action against each of the two sheriffs, as aforesaid, and each of the sureties on their said bonds because: (a) The said invasion of her home under the circumstances was a violation of her rights under the Federal and State Constitutions to be secure in her person and house against unreasonable searches and seizures. (b) The said invasion of her home under the circumstances was a violation of her rights under the Federal and State Constitutions to be secure against arrest, as to herself and family, except upon probable cause supported by oath or affirmation, particularly describing the person and place to be seized and searched. (c) The said invasion of her home under the circumstances was a violation of her right of privacy as a citizen of Georgia and of the United States. (d) The said invasion of her home under the circumstances was a violation of her right to personal security as a citizen of Georgia and of the United States. (e) The said invasion of her home under the circumstances constituted the said invaders as trespassers, and the said acts constitute a trespass against the plaintiff and her home and person. (f) The said invasion of her home under the circumstances was a positive and wilful tort and wrong on the part of the invaders. (g) The manner of the invasion of her home and personal security and privacy, in coming in the nighttime with large numbers of officers of the law and two automobiles, was in such manner as to call the attention of the neighbors to the said illegal invasion of the plaintiff's home, and was in such fashion as to cause the neighbors to know that the plaintiff's home was invaded in the late hours of the night, and that her husband was being placed under arrest in such fashion as to suggest that he was a dangerous criminal and desperado, and constituted an aggravation of the offense so as to subject the defendant to punitive damages, and the same was done in a wilful and wanton manner with a conscious indifference to consequences. (h) The said invasion of her home and personal privacy and security greatly shocked and frightened the plaintiff. The conduct of the said officers was in a wilful and wanton manner, and with a conscious indifference to consequences. No effort of any kind was made to determine whether the plaintiff's husband was wanted for any crime or misdemeanor, and there was nothing connecting him or identifying him with any crime or misdemeanor which afforded the slightest pretext or excuse for the illegal arrest and detention under the circumstances aforesaid. The said defendants are subject to the payment of reasonable counsel fees for the prosecution of this claim, and are subject to punitive damages (or smart money) for the wholly inexcusable conduct in the premises and having such arrest and illegal detention made of the plaintiff's husband and invading her home under the circumstances aforementioned. The plaintiff's counsel fee should be paid by the defendants, in the reasonable amount of $1000, and judgment is prayed for the same. Punitive damages (or smart money) should be awarded, together with damages for shock and fright, in the sum of $9000. The prayers were: (a) for process; (b) for a judgment of $9000 for punitive damages and for shock and fright because of the alleged unlawful acts of the defendants; (c) for a judgment for $1000 as attorney's fees.
Each of the defendants demurred generally on the ground that no cause of action was set forth, and also demurred on several other grounds. The court sustained the demurrers, and the exception here is to such judgments.
1. In McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga. App. 92, 99 ( 2 S.E.2d 810), quoting from Pavesich v. New England Life Insurance Co., 122 Ga. 190 ( 50 S.E. 68), there is an extended discussion of the constitutional right of people to be secure in their persons, houses, papers, and effects (art. 1, sec. 1, par. 16, Constitution of Georgia; Code, Ann., § 2-116), in which it is held that the right of privacy is derived from natural law and embraced within the absolute right of personal security and liberty. The unlawful entry by an officer into the home, if it is such as to constitute an invasion of the right of privacy of the wife of the head of the family and results in fright and shock to her, is such a wilful and intentional tort as to give her a cause of action. As stated in Young v. W. A. R., 39 Ga. App. 761 ( 148 S.E. 414): "The defendant's agent committed a trespass upon the home in which the plaintiff resided with her husband, and whether the cause of action for the unlawful search of and trespass upon the home was vested in the husband, the wrongful acts complained of nevertheless included a violation of the plaintiff's right of privacy and of personal security and constituted a positive wilful tort against her." See also Byfield v. Candler, 33 Ga. App. 275 ( 125 S.E. 905); Newcomb Hotel Co. v. Corbett, 27 Ga. App. 365 (1) ( 108 S.E. 309); Personal Finance Co. of Atlanta v. Loggins, 50 Ga. App. 562 ( 179 S.E. 162); Atlanta Hub Co. v. Jones, 47 Ga. App. 778 ( 171 S.E. 470). It appears from the allegations of the petition that the plaintiff's husband was at his home at approximately 1 a. m.; that he had committed no crime and there was no warrant for his arrest; that, in spite of these facts, the defendant Whittle's deputies, acting under his authority, illegally entered the home where the plaintiff was residing with her husband and arrested him. Such an entry is in violation of art. 1, sec. 1, par. 16 of the State Constitution. Code (Ann.) § 2-116. The unlawful arrest also constitutes a violation of § 26-1502, which provides as follows: "Any person who shall arrest, confine, or detain a person without process, warrant, or legal authority to justify it, shall be guilty of a misdemeanor." The unlawful entry into the plaintiff's home for the purpose of committing a misdemeanor therein, if the plaintiff was present and suffered from shock and fright as a result thereof, is such a violation of her right of privacy within the confines of her home as to give her a right of action. This right arises under circumstances as detailed in the petition, where it appears that the unlawful entry amounts to a wilful and intentional wrongful act. The petition in the instant case shows such conduct on the part of the deputies of the Sheriff of Richmond County. The right arises under the State Constitution and State laws. Insofar as the plaintiff seeks to recover in the instant case under and by virtue of an alleged violation of the Fourth Amendment to the Federal Constitution (Code, § 1-804), her action is not well founded, as this provision of the Federal Constitution is not one of the privileges and immunities of citizens of the United States which the Fourteenth Amendment to the Federal Constitution forbids the States to abridge. It relates only to Federal action. See Johnson v. State, 152 Ga. 271 ( 109 S.E. 662); Buffington v. State, 33 Ga. App. 162 (3) ( 125 S.E. 723).
2. Under Code § 24-2805, sheriffs are required to give an official bond conditioned for the faithful performance of their duties to be performed by themselves and their deputies. Such a bond is, under Code § 89-418, obligatory on both principal and sureties thereon, for the use and benefit of every person injured by any wrongful act of the principal committed under color of his office. The action here is one directly for the breach of the bonds, and the fact that a tort is disclosed in showing the breach of the bond does not render the action one ex delicto. The breach of the bond is alleged as the gist of the action. The fact that some of the language used, in showing that the wrongful act of the officers amounted to a breach of the bond, happens to be what is denominated a tort does not render the action one ex delicto. The suit is directly upon the bond. Jefferson v. Hartley, 81 Ga. 718, 719 ( 9 S.E. 174); Copeland v. Donehoo, 36 Ga. App. 817 ( 138 S.E. 267); Powell v. Fidelity Deposit Co., 45 Ga. App. 88 (4) ( 163 S.E. 239); Standard Surety Casualty Co. of New York v. Johnson, 74 Ga. App. 823 (3) ( 41 S.E.2d 576); Jackson v. Norton, 75 Ga. App. 650, 653 ( 44 S.E.2d 269); Carlan v. Fidelity Casualty Co. of New York, 55 Ga. App. 271 (1) ( 190 S.E. 47).
Special demurrers were filed by the defendants Whittle and the surety on his bond on the ground of misjoinder of parties defendant, in that they had no contractual or other relation with United States Fidelity Guaranty Company, the sole defendant subject to the jurisdiction of the Superior Court of Johnson County where the action was brought. While it would appear that this special demurrer is well taken, the trial court's judgment on the general demurrers will necessarily decide the case.
The only allegations of the petition as to Sheriff Brooks of Jackson County are: that he communicated to his codefendant, Sheriff Whittle of Richmond County, a request "that one Robert H. Walker be arrested and placed in jail"; that he furnished no warrant to Whittle; and that there had never been any warrant or process issued for the arrest of the plaintiff's husband in Jackson County, nor was there such warrant or process in Richmond County. By amendment it was alleged that Brooks acted under color of his office and by sending such communication was responsible for the acts of Whittle and his deputies. Construing the petition against the pleader, it merely appears that Brooks asked for the arrest of "one Robert H. Walker" (not otherwise identified as the Robert H. Walker who was subsequently arrested), and at the time he did so no warrant for such arrest had been issued. However, the warrant need not have been in existence at the time the request was made. It would have been perfectly proper for Whittle, acting in his official capacity, to have obtained a warrant in Richmond County before proceeding to the plaintiff's home, and to have thereafter turned him over to the proper authorities in Jackson County. See Burrow v. Southern Ry. Co., 139 Ga. 733 (2) ( 78 S.E. 125), and Code § 27-209, which provides: "An arresting officer may arrest any person charged with crime, under a warrant issued by a judicial officer, in any county, without regard to the residence of said arresting officer; and it is his duty to carry the accused, with the warrant under which he was arrested, to the county in which the offense is alleged to have been committed, for examination before any judicial officer of that county. The county where the alleged offense is committed shall pay the expenses of the arresting officer in carrying the prisoner to the county; and the officer may hold or imprison the defendant long enough to enable him to get ready to carry the prisoner off." In consequence, nothing is alleged as to the conduct of Brooks which was itself illegal, nor could Brooks reasonably have foreseen that Whittle would proceed to act on his request in an unauthorized and illegal manner when it would have been possible for him to do so in a proper and legal way. It follows that no cause of action is set out against the defendant Brooks and his surety, United States Fidelity and Guaranty Company. The trial court therefore properly sustained the general demurrer as to these defendants.
3. Although the petition sets out a cause of action against the Sheriff of Richmond County and the surety on his bond, the Superior Court of Johnson County lost jurisdiction of these defendants when the demurrers of the Sheriff of Jackson County and the surety on his bond were sustained. The surety on this bond was the only defendant with a residence or office and place of doing business in Johnson County. Jurisdiction of the remaining defendants was therefore lost by the Superior Court of Johnson County when the action was dismissed as to this defendant.
The trial court did not err in sustaining the demurrers and dismissing the petition.
Judgment affirmed. Gardner and Townsend, JJ., concur.