2020 Georgia Code
Title 45 - Public Officers and Employees
Chapter 4 - Official Bonds
§ 45-4-29. Measure of Damages in Actions on Official Bonds
The measure of damages recoverable in actions upon all official bonds for the misconduct of the officer, unless otherwise specially enacted, shall be the amount of injury actually sustained, including the reasonable expenses of the action to the plaintiff and the costs of court. In all cases when little or no damage is actually sustained and the officer has not acted in good faith, the jury may find for the plaintiff an amount as exemplary damages which, taking all the circumstances together, shall not be excessive or oppressive.
(Orig. Code 1863, § 162; Code 1868, § 157; Code 1873, § 168; Code 1882, § 168; Civil Code 1895, § 264; Civil Code 1910, § 299; Code 1933, § 89-421; Ga. L. 1990, p. 8, § 45.)
Cross references.- Amount of judgments on bonds generally, § 9-12-13.
Law reviews.- For article on bond liability and righting the wrongs of Georgia local government officers, see 13 Ga. L. Rev. 747 (1979).
JUDICIAL DECISIONS
Plaintiff's recovery not limited to amount of officer's bond.
- The public officer would be personally be liable in tort for any official misconduct or acts colore officii whereby the plaintiff was damaged and the plaintiff would not be restricted in a recovery to the amount of the officer's official bond. Cantrell v. National Sur. Co., 46 Ga. App. 202, 167 S.E. 314 (1932).
Recovery of expenses limited to action under consideration.
- Since this section provides for the awarding of expenses of the suit, including the costs of court, it is construed to mean the present damage suit under consideration, and not the previous litigation; therefore, the plaintiff could not lawfully recover for two items of costs in previous litigation. Talmadge v. McDonald, 44 Ga. App. 728, 162 S.E. 856 (1932).
Sureties liable for misconduct of deputies.
- The words "misconduct of the officer" as used in this section mean not only the misconduct of the sheriff, but also the misconduct of the sheriff's deputies who are the general agents of the sheriff to do and perform all acts which by law appertain to the office, and since the doctrine of respondeat superior applies, the liabilities of the sureties on the sheriff's bond are measured by that of the principal. American Sur. Co. v. Smallon, 54 Ga. App. 45, 186 S.E. 892 (1936).
Sureties not liable for mere penalties imposed for dereliction of duties.
- The liability of sureties on official bonds does not ordinarily include liability for mere penalties imposed upon the principals for a dereliction of official duties, but is limited to injury sustained. National Sur. Corp. v. Gatlin, 192 Ga. 293, 15 S.E.2d 180 (1941).
Measure of damages for sheriff's breach of official bond.
- The measure of damages for the breach of the official bond of a sheriff is ordinarily the amount of injury actually sustained, including the reasonable expenses of the suit thereon and the costs of court. Hartford Accident & Indem. Co. v. Young, 40 Ga. App. 843, 151 S.E. 680 (1930).
Measure of damages includes necessary and reasonable attorney's fees. Hartford Accident & Indem. Co. v. Young, 40 Ga. App. 843, 151 S.E. 680 (1930).
No need to show bad faith for recovery of attorney's fees.
- In a case arising under this section, it is unnecessary to show bad faith, or the like, as a condition to the recovery of attorney's fees. Hartford Accident & Indem. Co. v. Young, 40 Ga. App. 843, 151 S.E. 680 (1930).
In a suit on a bond of a public officer for official misconduct, it is unnecessary to show bad faith or the like as a condition to the recovery of attorney's fees, as is generally required in contract actions by former Code 1933, § 20-1404 (see now O.C.G.A. § 13-6-11). Glens Falls Indem. Co. v. Dempsey, 68 Ga. App. 607, 23 S.E.2d 493 (1942).
What constitutes reasonable attorney fees is a question of fact. Scruggs v. Dorminey, 129 Ga. App. 453, 199 S.E.2d 922 (1973).
County not entitled to recover attorney's fees.
- Since it was not shown by the evidence that the county suffered any injury or loss because of having to pay attorney's fees, the county was not entitled to recover attorney's fees under this section. Massachusetts Bonding & Ins. Co. v. Floyd County, 178 Ga. 595, 173 S.E. 720 (1934).
What amounts to bad faith.
- Any arbitrary omission by the officer to do that which is required of the officer by law, or any conscious disregard of the limitation upon the officer's authority, would amount to bad faith within the meaning of that term as employed in this section. Copeland v. Dunehoo, 36 Ga. App. 817, 138 S.E. 267 (1927).
Recovery of reasonable expenses as well as exemplary damages.
- This section is susceptible of the construction that when exemplary damages are awarded there can still be a recovery for the reasonable expenses of the suit to the plaintiff, which necessarily includes attorney's fees. Glens Falls Indem. Co. v. Dempsey, 68 Ga. App. 607, 23 S.E.2d 493 (1942).
Attorneys' fees can be recovered in a suit for exemplary damages under this section. Sharpe v. Lowe, 214 Ga. 513, 106 S.E.2d 28 (1958).
Instructions not prejudicial to defendant.
- It is not prejudicial to the defendant for the court to charge the jury that to authorize a recovery for punitive or exemplary damages the jury must be satisfied that there was some wilful misconduct on the part of the officers, or that entire want of care by them which would give rise to the presumption of a conscious indifference to consequence, and that there must be evidence satisfactory to the jury either of malicious wantonness or of an oppression by the officers as against the plaintiff. American Sur. Co. v. Smallon, 56 Ga. App. 746, 194 S.E. 35 (1937).
Cited in American Sur. Co. v. Citizens' Bank, 48 Ga. App. 448, 172 S.E. 801 (1934); Matthews v. Rowell, 49 Ga. App. 673, 176 S.E. 802 (1934); Carlan v. Fidelity & Cas. Co., 55 Ga. App. 271, 190 S.E. 47 (1937); American Sur. Co. v. Smith, 55 Ga. App. 633, 191 S.E. 137 (1937); Smith v. Glen Falls Indem. Co., 71 Ga. App. 697, 32 S.E.2d 105 (1944); Fleming v. United States Fid. & Guar. Co., 146 F.2d 128 (5th Cir. 1944).
RESEARCH REFERENCES
Am. Jur. 2d.
- 63C Am. Jur. 2d, Public Officers and Employees, § 492.
C.J.S.- 67 C.J.S., Officers and Public Employees, § 481.
ALR.
- Liability on bond of sheriff or other peace officer for unlawful search, 62 A.L.R. 855.
Liability of surety on bond of law enforcement officer for punitive or exemplary damages, 64 A.L.R. 934.
Personal liability of public officer or sureties on his bond to property owner for failure to present, or delay in presenting, checks given in payment of taxes, 105 A.L.R. 711.
Personal liability of public officer for killing or injuring animal while carrying out statutory duties with respect to it, 2 A.L.R.3d 822.
