1. This court is without authority to consider a ground of a demurrer which was not passed upon in the judgment of the court below.
2. The sheriff and the sureties on his bond are liable in damages to a party entitled to sue therefor under the law, for an illegal homicide committed by the sheriff by virtue of his office or under color of his office. *Page 698
3. We do not decide as to the measure of damages in the instant case because the judgment of the lower court did not pass on this ground of the demurrer.
DECIDED OCTOBER 19, 1944. REHEARING DENIED NOVEMBER 10, 1944. The bill of exceptions in this case assigns error on the judgment of the trial court sustaining the demurrer to the petition. The material allegations of the petition are: That the plaintiff, Mrs. Eunice Smith, is the mother of James Smith, deceased; that Luther C. Middlebrooks, at the time of the killing of James Smith, was the sheriff and jailer of Spalding County, Georgia; that Glens Falls Indemnity Company, a corporation, was at that time surety on the official bond of the sheriff; that the amount of the bond is $5000, and the extent of recovery sought is $5000; that the surety has an office and place of business and an agent located in Troup County, Georgia; that the suit was brought in the city court of La Grange, Troup County, Georgia; that the plaintiff's son was killed by the sheriff shooting him in the back of the head on the night of November 2, 1943, in Spalding County, Georgia. For the purpose of deciding the questions presented, we will quote what we consider other material allegations, of the petition: "6. That your petitioner is the mother of James Smith, now deceased, and was at the time of his death dependent upon him, and that her said son contributed to her maintenance and support, which he had done since he was able to work, and which he continued to do until his death. 10. (a) Petitioner shows that her said son had just prior to his death been honorably discharged from the United States Marine Corps, on account of wounds received in the Pacific battle area, and had recently arrived at the home of his mother and father in Thomaston, Georgia. (b) Petitioner shows that on the evening of November 2, 1943, her said son borrowed his father's car and together with five friends went to Griffin, Spalding County, Georgia. (c) That her said son together with his friends had supper in Griffin and drove around the city for a short time and had started back to Thomaston, and were driving along the paved highway peaceably, when they were met and passed by a State-patrol car. This State-patrol car in a few minutes came up rapidly from their rear and stopped them. One of the State *Page 699 patrolmen asked Mr. Holloway, who was driving in an orderly and legal manner, why he did not dim his lights when the patrol car met him, and Mr. Holloway said that he thought that he did. Whereupon the said patrolman arrested Mr. Holloway without any warrant or legal authority and commanded him to get into the State-patrol car, which he did. The patrolman refused to permit the others to continue on to their home in Thomaston, although all of them begged and pleaded with the patrolman to permit them to go on home in the Smith car, as it was late and some of the girls had to go to work; that Sergeant Lurvey would drive them. Nevertheless the patrolman disregarded their rights and requests and, illegally and without authority, seized and took possession of the Smith car, got under the steering wheel and drove them all back to the Spalding County jail. When they reached the Spalding County jail, the patrolman driving the State-patrol car took Mr. Holloway into the jail, and the patrolman driving the Smith car took the keys out of the Smith car and took them into the jail. (d) Petitioner shows that her said son, together with Luther Lurvey, who had been with her son all evening, went with the State patrolman and Mr. Holloway into the jail, where Mr. Holloway was placed in jail, without commitment and without legal authority, by said defendant Sheriff Middlebrooks, and the keys to her son's car were taken possession of by said defendant Sheriff Middlebrooks, and unlawfully retained by him. (e) Petitioner shows that her said son together with his five remaining companions were left stranded there at the Griffin jail with no way to return to their home, although none of them were under arrest nor charged with any violation of the law. (f) Petitioner shows that after a few minutes her said son went back to the jail, for the purpose of asking defendant Sheriff Middlebrooks to let him pay Mr. Holloway's fine, or give bond, and especially to get the keys to his car as there was an urgent necessity for him to have the keys so they could proceed to their home in Thomaston. That he knocked at the door and defendant Sheriff Middlebrooks answered the knock, and that immediately Sheriff Middlebrooks assaulted and struck her said son on the nose with a blackjack or some other weapon, breaking his nose and causing it to bleed profusely, and at that time the wife of defendant Sheriff Middlebrooks came out of the door with a pistol and threatened to shoot him; that her said son took *Page 700 the pistol out of her hand and started back toward his car and had gotten some twenty feet from the steps when he was shot in the back of the head by defendant Sheriff Middlebrooks and instantly killed. (g) Petitioner shows that her said son had violated no law, was not under arrest, and that he had a legal right to try to get Mr. Holloway released from jail, and had a legal right to ask for the keys to his car, and that he was assaulted and struck by defendant Sheriff Middlebrooks without any cause, and that he had a legal right to take the pistol from defendant Sheriff Middlebrooks' wife, and that the shooting of her said son in the back of his head, at a time when he was going away from the jail, by defendant Sheriff Middlebrooks was illegal and not justifiable. 11. Petitioner shows that she has no property, no formal education, and is not physically able to work. That her said son all during the time he was serving in the Marine Corps had sent her an allotment, for her maintenance and support. 12. Petitioner shows that her said son was twenty-one years of age, and had a life expectancy of 40.04 years, and the value of his life was in excess of $5000. 14. Petitioner shows that at the time defendant Sheriff Middlebrooks unjustifiably took the life of her son, he was acting in his official capacity as sheriff and jailer of Spalding County, Georgia, and that both he and his bondsman, Glens Falls Indemnity Company, are liable to her for the injuries and damages caused by his official misconduct."
The defendants' demurrers are: "1. Because said petition sets forth no valid or legal cause of action against these defendants. 2. Because this is a suit on the official bond of Luther C. Middlebrooks and the surety on his bond, and it appears from the allegations of the petition that the homicide of plaintiff's son was not committed by the said sheriff under color of his office as sheriff, or by virtue of his office as sheriff, and does not show any liability under said bond for said homicide. 3. Defendants demur to paragraph fourteen of the petition, and move to strike the same for the following reasons: (a) Because the allegation that defendant, Sheriff Middlebrooks, was, at the time and place complained of in the petition, acting in his official capacity as sheriff and jailer of Spalding County, Georgia, is a mere conclusion of the pleader, and is not supported by any allegations of facts. (b) Because the facts alleged show affirmatively that at said time and place the said defendant. *Page 701 Luther C. Middlebrooks, was not acting under color of his office as sheriff, nor by virtue of his office as sheriff, but was acting as a private citizen, for which alleged conduct no action will lie on his official bond. 4. Because there is a misjoinder of causes of action in that in the same count of the petition, the plaintiff is seeking to recover the full value of the life of her son under Code section 105-1307, and to recover on his bond, under Code section 89-421, the amount of injury actually sustained by her on account of his death. 5. Defendants demur to paragraphs 6, 11, and 12 of the petition, and move to strike the same for the following reason: Because this is a suit on the official bond of Luther C. Middlebrooks, as sheriff, and the sureties on his bond, in which the measure of damages is prescribed in Code section 89-421, as the amount of injury actually sustained; and said allegations in paragraphs 6, 11, and 12 of the petition relate only to the full value of the life of the deceased, which can not be recovered in this action, and are irrelevant and immaterial to any of the issues in the case. 6. Defendants demur to subsection `a' of paragraph 10 of the petition and move to strike the same because the allegations in said subsection are irrelevant and immaterial to any of the issues involved in the case and are prejudicial and unfair to defendants, and throw no light upon any issue involved in the case. . . Filed in office April 12, 1944."
Thereafter, on April 22, 1944, the plaintiff filed an amendment to her petition as follows: "1. By adding to paragraph 6 of her original petition the following allegation: That her son, James Smith, left no wife or child surviving him. 2. By adding at the end of paragraph 14 of her original petition the following allegation: At the time of the acts herein complained of the defendant Sheriff Middlebrooks was acting by virtue of his office as sheriff of Spalding County and under color of his office as sheriff of Spalding County, and that in such capacities he, without lawful cause and not in self-defense shot and killed her son, James Smith, as hereinbefore set forth."
Whereupon, on May 2, 1944, the defendants renewed their demurrer as follows: "And now come the defendants in the above stated case, and renew their demurrer heretofore filed in said case to the petition as amended. 1. Defendants demur to paragraph 2 of the amendment filed on April 22d, 1944, and move to strike *Page 702 said paragraph 2 for the following reasons: (a) Because the allegations contained in said paragraph are mere conclusions of the pleader and state no facts upon which said conclusion is based. (b) Because the allegations of the petition show affirmatively that the said defendant, Sheriff Middlebrooks, was not acting by virtue of his office as sheriff of Spalding County, or under color of his office as sheriff of Spalding County, but was acting in his individual capacity. And defendants show that neither the sheriff nor his bondsmen are liable for said homicide on his official bond."
In passing upon the issues thus made by the pleadings the court on May 17, 1944, passed the following order: "The demurrers heretofore filed by the defendant in the above-stated case to the plaintiff's petition, on April 12th, 1944, and renewed on May 2d, 1944, coming on duly to be heard at the time and place set for a hearing, after argument and due consideration, and holding the matter under advisement to this day, it is now therefore ordered and adjudged as follows: (1) Paragraphs 1 and 2 of the demurrer filed on April 12th, 1944, are hereby sustained. (2) Having sustained the general demurrers as above set forth it becomes unnecessary to pass upon any of the other paragraphs of this demurrer or in the demurrer filed on May 2d, 1944. Wherefore, it is now ordered and adjudged that said petition of plaintiff be and the same is hereby stricken and dismissed." 1. As we construe the judgment of the court, there is here but one question presented for decision and that is whether under the allegations of the petition, the sheriff, when he killed James Smith, was acting by virtue of his office or under color of his office, on the one hand, or as an individual, on the other hand. Learned counsel for the defendants argue that the judgment on the demurrer also decided the question of the measure of damages, and contend that if the plaintiff is entitled to recover at all, she is not entitled to recover the full value of the life of the deceased, but only to the extent of the contributions he made to her. It is contended that in a petition such as is now before us, as to the surety on the official bond, the measure of the recovery against the surety is as prescribed in the Code, § 89-421, and "shall be the amount of injury actually sustained," and not the full value of the *Page 703 life of the plaintiff's son, as prescribed in § 105-1307. As we construe the judgment of the trial court, which we have set forth above, the court did not pass upon this question. The fourth paragraph of the demurrer deals with the question of the measure to be applied to determine the recovery. The court specifically stated in the judgment that he was not passing upon any of the paragraphs of the demurrer except paragraphs 1 and 2. It is true that paragraph 1 alleges that the petition sets forth no cause of action, but in sustaining this paragraph in connection with paragraph 2, the judgment thereon could not be construed and extended to apply to the allegations of paragraph 4. In arguing paragraph 4 counsel for the surety must necessarily concede that the plaintiff (if the acts of the sheriff were under color of his office or by virtue of his office) is entitled to recover the amount of the contributions, or for the full value of the life. This goes to the measure, rather than to the right of recovery. In our view of the case it therefore follows that the court passed on only one question in the petition, and that is whether the sheriff acted by virtue of his office or under color of it in killing the deceased. The trial court not having passed on any other question, this court is without authority to pass on any other question.
2. Let us next inquire whether, under the allegations of the petition, the sheriff was acting (a) by virtue of his office; or (b) under color of his office; or (c) in his individual and personal capacity. There are a number of decisions of our appellate courts dealing with cases arising from the conduct of a sheriff in his official capacity by virtue of his office and under color of his office, and we will not engage in any lengthy discussion concerning this issue, but we will refer to some of these cases. An act done under color of office is discussed inLuther v. Banks, 111 Ga. 374 (36 S.E. 826), where it is defined to be "a pretense of official right to do an act, made by one who has no such right." And in Hawkins v. National SuretyCorp., 63 Ga. App. 367 (11 S.E.2d 250), an officer's act colore officii is thus defined: "An officer's acts are done colore officii when they are of such a nature that his official position does not authorize the doing of such acts, though they are done in a form that purports they are done by reason of official duty and by virtue of his office." In 15 C. J. S. 236 the phrase is defined in the following language: "A wrong committed by an officer under *Page 704 pretended authority of his office." We also call attention to specific cases of our appellate courts the facts of which have been held to be acts under color of office as follows: InRobertson v. Smith, 16 Ga. App. 760 (85 S.E. 988), the facts were that the sheriff's deputy, killed the plaintiff's husband while attempting to arrest him unlawfully. Also seeRobertson v. Smith, 16 Ga. App. 767 (85 S.E. 991). InCopeland v. Dunehoo, 36 Ga. App. 817 (138 S.E. 267), the officer illegally shot at the plaintiff in attempting to arrest her. In Powell v. Fidelity Deposit Co., 45 Ga. App. 88 (163 S.E. 239), s. c. 48 Ga. App. 529 (173 S.E. 196), the facts show that the sheriff's deputy without provocation unlawfully killed a prisoner who was in his custody under arrest. In Richards v. American Surety Co., 48 Ga. App. 102 (171 S.E. 924), the deceased was lawfully at a still, but ran upon the approach of the officers. The deputy shot and killed him to prevent his escape. In Glens Falls Indemnity Co. v. Dempsey,68 Ga. App. 607 (23 S.E.2d 493), the sheriff, while serving a search warrant, assaulted the plaintiff's husband. InAldridge v. Wooten, 68 Ga. App. 887 (24 S.E.2d 700), the sheriff shot at an escaping convict and killed a bystander. See also Mitchell v. Malone, 77 Ga. 301. In this connection we also call attention to the following decisions setting forth acts which the court held to be acts of an individual and personal nature and not acts by reason of the office: Robertson v.Smith, 16 Ga. App. 760 (supra); Fidelity Deposit Companyof Maryland v. Smith, 35 Ga. App. 744 (134 S.E. 801);Hodge v. United States Fidelity Guaranty Co., 42 Ga. App. 84 (155 S.E. 95). In the light of the above decisions and the facts of those cases let us inquire whether the allegations of the petition in the instant case set forth such conduct on the part of the sheriff as to conclude that he was acting by virtue of his office, or under color of his office, or both, at the time he killed the deceased, or whether he was acting in his individual and personal capacity as a private citizen. To do this we must look to the whole transaction as alleged by the petition and not to one particular part of it, and we are bound to consider the allegations of the petition which are well pleaded as true. The petition alleges that the car in which the deceased and his party were riding had been obtained from the father of the deceased; that the party left Thomaston and after having obtained supper in Griffin drove around for a short time *Page 705 and started back to Thomaston. Mr. Holloway, a member of the party, which consisted of five persons, some of them girls, was driving the car. A state patrolman arrested Mr. Holloway, took charge of the Smith car, and returned to Griffin with Mr. Holloway and the car. There was no warrant for Holloway. Holloway was delivered to the sheriff; also the keys to the car. The petition does not reveal the hour of the arrest. It merely states that it was in the evening.
We may concede that the patrolman had a right to make the arrest without a warrant, under the provisions of the Code, § 27-207, in that the misdemeanor committed by Holloway for not dimming his lights was committed in the presence of the patrolman, and that the law allows a reasonable time after the arrest to procure a warrant, under the provisions of § 27-212. It is also true that the sheriff had authority, if indeed it was not his duty, to receive Holloway from the patrolman, under the provisions of § 77-9902. Thus far the allegations show that the sheriff received Holloway, a member of the deceased's party, and placed him in jail by virtue of the authority of his office as sheriff. Let us see what thereafter happened. The sheriff also received the keys to the Smith car from the patrolman, thus, according to the allegations of the petition, leaving the five remaining companions of Holloway (including Smith) stranded in Griffin, Georgia, with no way to return to their homes. To us it is plain that the sheriff had no authority to retain these keys, but in doing so, having received them from the patrolman at the time he received Holloway, he was acting under color of his office. He certainly did not receive them in an individual capacity any more than he received Holloway in an individual capacity. He was acting throughout, thus far, by virtue of his office and under color of his office. The petition further alleges, immediately in this connection, that "after a few minutes her [meaning the plaintiff's] said son went back to the jail, for the purpose of asking defendant Sheriff Middlebrooksto let him pay Mr. Holloway's fine, or give bond, and especiallyto get the keys to his car as there was an urgent necessity forhim to have the keys so they could proceed to their home inThomaston. That he knocked on the door, and defendant Sheriff Middlebrooks, answered the knock, and that immediately defendant Sheriff Middlebrooks assaulted and struck her said son on the nose with a *Page 706 blackjack or some other weapon, breaking his nose and causing it to bleed profusely, and at that time the wife of defendant Sheriff Middlebrooks came out of the door with a pistol and threatened to shoot him; that her said son took the pistol out of her hand and started back toward his car, and had gotten some twenty feet from the steps when he was shot in the back of the head by defendant Sheriff Middlebrooks and instantly killed." (Italics ours.)
Under these circumstances we conclude that the deceased had a perfect right to return to the jail for the purpose, as alleged, of making an effort to obtain the keys to his car; and we also think that he had a right to return for the purpose of discussing with the sheriff the matter of a bond for Holloway. It is true that the sheriff had no right to assess a fine for Holloway. We find little difficulty in reaching the conclusion that the deceased had a right to return to the jail for the purpose of discussing the procurement of his keys, and to discuss the question of a bond for Holloway with Mr. Middlebrooks in his official capacity of sheriff and not as an individual. We think such is the right of every citizen, in this country. At this stage of the transaction the petition alleges that the deceased knocked on the door, and that the sheriff answered the knock and immediately assaulted the deceased with a blackjack or some other weapon, striking him in the face, breaking his nose and causing it to bleed profusely. Then it was that the sheriff's wife came out of the door with a pistol, and threatened to shoot the deceased. Thereupon the deceased took the pistol from her and started back toward his car. When he had turned and gotten about twenty feet from the steps (where the sheriff was standing) the sheriff shot him in the back of the head, killing him instantly. Viewing the whole transaction — from the time of the arrest of Holloway until the fatal shooting — it reveals throughout that the sheriff was acting in part by virtue of his office and in part under color of his office. So far as the allegations of the petition go, by which we are bound, at no time was the sheriff acting in his individual and personal capacity as a citizen.
In this view of the question before us, the court erred in sustaining the demurrer and dismissing the petition.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur. *Page 707