O.C.G.A.

§ 45-4-24 applicable only to official bonds. - Under the provisions of this section, bonds of public officers are conditioned for the use and benefit of every person who is injured by the principal under color of office; but, as to statutory-penalty bonds which are not bonds of public officers, this provision does not apply, and a member of the public who is injured by the principal's failure to observe the conditions of the bond cannot sue the principal and sureties on such bond to collect damages for such wrongful act when the statute gives that person no right to bring such action. Talmadge v. General Cas. Co. of Am., 88 Ga. App. 234, 76 S.E.2d 562 (1953); Martin v. Hartford Accident & Indem. Co., 88 Ga. App. 236, 76 S.E.2d 564 (1953).

Acts entirely unauthorized not breach of bond.

- When a tax-collector, having no authority of law whatever to make levies and sales under tax fi. fa., issued a fi. fa. purporting to be for taxes due, and placed it in the hands of another as the tax collector's deputy, who, "armed" with the fi. fa. and acting under the instructions of the tax-collector, seized property of the alleged taxpayer and sold it, to the owner's damage, it was held that such acts constituted no breach of the tax-collector's bond and the surety on the bond was not liable therefor. Fidelity & Deposit Co. v. Smith, 35 Ga. App. 744, 134 S.E. 801 (1926).

Cited in American Sur. Co. v. Robinson, 53 F.2d 22 (5th Cir. 1931); Talmadge v. McDonald, 44 Ga. App. 728, 162 S.E. 856 (1932); Maryland Cas. Co. v. Salmon, 45 Ga. App. 173, 164 S.E. 80 (1932); John Hancock Mut. Life Ins. Co. v. Rowland, 178 Ga. 494, 173 S.E. 417 (1934); Matthews v. Rowell, 49 Ga. App. 673, 176 S.E. 802 (1934); Nesbit v. National Sur. Corp., 63 Ga. App. 518, 11 S.E.2d 667 (1940); Creaser v. Durant, 197 Ga. 531, 29 S.E.2d 776 (1944); Standard Sur. & Cas. Co. v. Johnson, 74 Ga. App. 823, 41 S.E.2d 576 (1947); Walker v. Whittle, 83 Ga. App. 445, 64 S.E.2d 87 (1951); Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967); Fidelity-Phenix Ins. Co. v. Mauldin, 118 Ga. App. 401, 163 S.E.2d 834 (1968); Price v. Arrendale, 119 Ga. App. 589, 168 S.E.2d 193 (1969).

Use of racial epithlets by officer not breach of bond.

- A deputy sheriff's use of racial epithets during a telephone conversation regarding the plaintiff did not give rise to a cause of action that would allow for recovery on the deputy's bond. Booth v. Firemen's Ins. Co., 223 Ga. App. 243, 477 S.E.2d 376 (1996).

Officer's investigation as breach of bond.

- A deputy sheriff did not breach a deputy's bond in connection with an investigation of an altercation involving plaintiff and another since there was no evidence that the deputy had a duty under the law that ran specifically to the plaintiff. Booth v. Firemen's Ins. Co., 223 Ga. App. 243, 477 S.E.2d 376 (1996).

Unless act constitutes breach of official duty.

- When an arresting officer, who has a prisoner under arrest, kills the prisoner unlawfully and without provocation, the officer commits a breach of official duty, and there is a liability upon the officer's official bond, to the statutory beneficiary of the dead man for damages for the homicide. Powell v. Fidelity & Deposit Co., 45 Ga. App. 88, 163 S.E. 239 (1932).

"Color of office" defined.

- "Color of office" is a pretense of official right to do an act, made by one who has no such right. Luther v. Banks, 111 Ga. 374, 36 S.E. 826 (1900); Fidelity & Deposit Co. v. Smith, 35 Ga. App. 744, 134 S.E. 801 (1926); Jones v. Reed, 58 Ga. App. 72, 197 S.E. 665 (1938); Hawkins v. National Sur. Corp., 63 Ga. App. 367, 11 S.E.2d 250 (1940); Goforth v. Fidelity & Cas. Co., 80 Ga. App. 121, 55 S.E.2d 656 (1949).

An officer's acts are done colore officii when they are of such a nature that the officer's 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 office. Citizens' Bank v. American Sur. Co., 174 Ga. 852, 164 S.E. 817 (1932); Richards v. American Sur. Co., 48 Ga. App. 102, 171 S.E. 924 (1933); Jones v. Reed, 58 Ga. App. 72, 197 S.E. 665 (1938); Hawkins v. National Sur. Corp., 63 Ga. App. 367, 11 S.E.2d 250 (1940).

Sheriff liable for improper act of deputies.

- An improper act done by sheriff's deputies under a pretended or supposed right, which does not exist, would as a colore officii act render sheriff liable to anyone aggrieved. Hawkins v. National Sur. Corp., 63 Ga. App. 367, 11 S.E.2d 250 (1940).

Wrongful act during attempted arrest.

- An officer shooting at the occupants of an automobile who have fled from an attempted arrest for a misdemeanor (illegal transportation of liquor) commits a wrongful act under color of office. Copeland v. Dunehoo, 36 Ga. App. 817, 138 S.E. 267 (1927).

Liability for injuries inflicted during performance of official duties.

- This section providing that official bonds shall be for the benefit of persons injured by the principals must be read with the conditions of such bonds obligating the officials to well and truly perform the duties of their office, and refers to such liabilities as arise within the proper intendment of the obligation. Citizens' Bank v. American Sur. Co., 174 Ga. 852, 164 S.E. 817 (1932); Culpepper v. United States Fid. & Guar. Co., 199 Ga. 56, 33 S.E.2d 168 (1945).

Option to bring personal suit or action on official bond.

- If a person has been injured and has suffered damage by any wrongful act committed by an officer under color of office, the person can sue such officer personally or upon the officer's official bond, and recover the amount of the damage. Citizens' Bank v. American Sur. Co., 174 Ga. 852, 164 S.E. 817 (1932); Jones v. Reed, 58 Ga. App. 72, 197 S.E. 665 (1938).

Suit for wrongful act by sheriff or deputy.

- Suit may be brought upon the sheriff's bond for any wrongful act "committed under color of the his office" by the sheriff or a deputy, and such a bond is obligatory upon the principal and sureties thereon for the "use and benefit of every person who is injured" by such wrongful act. Richards v. American Sur. Co., 48 Ga. App. 102, 171 S.E. 924 (1933).

One who is aggrieved by the official misconduct of a deputy sheriff may at their option sue either on the sheriff's bond or on the deputy's bond. Aldridge v. Wooten, 68 Ga. App. 887, 24 S.E.2d 700 (1943).

Sheriff liable for failure to take bond from deputy.

- The sheriff was required by former Code 1933, § 24-2811 (see now O.C.G.A. § 15-16-23) to take a bond from a deputy, and for failure to discharge the sheriff's duty in this respect may be held liable, even after the sheriff's retirement from office, by any person who has been injured. Maryland Cas. Co. v. Smith, 56 Ga. App. 154, 192 S.E. 449 (1937).

Suit by member of the public not authorized on nonofficial bond.

- When the instrument sued on in an action against a municipal police officer for false arrest, is not a statutory official bond, and consequently can be enforced only according to the terms and obligations stated in the bond, the terms of this section cannot be read into the bond so as to authorize a suit in favor of a member of the public. Collins v. United States Fid. & Guar. Co., 72 Ga. App. 875, 35 S.E.2d 474 (1945) (decided under former Code 1933, § 89-418 as it appeared prior to 1975).

Sureties are chargeable with subsequent changes in the law.

- By the proviso in paragraph (a)(3) of this section and similar provisions, a surety is given notice that on executing bond with the ordinary it would become liable for the faithful discharge of the duties of that officer under any law subsequently passed, and also that under some latter statute it might become liable for more than the injury actually sustained. It thus consented to become liable along with the officer whose duties and responsibilities were subject to change by law, thereby contracting for the future, to the extent of such changes as would be germane. National Sur. Corp. v. Gatlin, 192 Ga. 293, 15 S.E.2d 180 (1941).

Liability for wrongful acts of police officer.

- The sureties upon the official bond of a police officer are liable for wrongful acts only when performed by virtue of office, or under color of the police officer's office. Hodge v. United States Fid. & Guar. Co., 42 Ga. App. 84, 155 S.E. 95 (1930).

Liability for wrongful acts of sheriff.

- The sureties on the bonds of sheriffs of this state are liable to persons for injuries proximately resulting to them: (1) because of the failure of the sheriff to perform a duty imposed upon the sheriff by law; (2) because of the improper or neglectful performance of such a duty; and (3) for any wrongful act committed under color of the sheriff's office. Goforth v. Fidelity & Cas. Co., 80 Ga. App. 121, 55 S.E.2d 656 (1949).

Liability for wrongful acts of deputy sheriff.

- A failure of a sheriff, by and through a deputy, to faithfully perform the duties of office constitutes a breach of the official bond given by the sheriff for the faithful performance of the duties of office, and a right of action against the surety for the breach of the bond arises ex contractu in favor of any person aggrieved by such breach of the bond. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529, 173 S.E. 196 (1934); Hawkins v. National Sur. Corp., 63 Ga. App. 417, 11 S.E.2d 250 (1940).

The official bond given by a sheriff, conditioned for the faithful performance of the duties of office, obligates the surety thereon for any breach of official duty by the sheriff's deputies, and this includes deputies de facto. Powell v. Fidelity & Deposit Co., 45 Ga. App. 88, 163 S.E. 239 (1932).

The sureties on the official bond of a sheriff are liable for a breach of its condition by a deputy sheriff as well as by the sheriff directly. Shelton v. Fidelity & Cas. Co., 86 Ga. App. 818, 72 S.E.2d 813 (1952).

Plaintiff bound by election of remedy.

- When the plaintiff had previously elected to sue on the bond of the sheriff, instead of on the deputy's bond, for the alleged wrongful acts of the sheriff and the deputy and had prosecuted that suit to judgment for an amount less than the penal sum of the sheriff's bond, as it did not appear that such judgment could not be satisfied (as in fact it had been), the plaintiff was bound by that election and was barred from maintaining a second present suit, on the deputy's bond, for the same damage and injury for which the plaintiff had previously recovered judgment against the surety on the sheriff's bond. Shelton v. Fidelity & Cas. Co., 86 Ga. App. 818, 72 S.E.2d 813 (1952).

Extent of liability for compensated sureties.

- The rule of "strict law" embodied in former Code 1933, § 103-103 (see now O.C.G.A. § 10-7-3), concerning the extent of a surety's liability, did not apply to compensated sureties. Busbee v. Reserve Ins. Co., 243 Ga. 371, 254 S.E.2d 324 (1979).

Official action causing liability for surety.

- When the director of the Board of Corrections failed to disgorge sums the director had received in the form of an unauthorized salary increase, this was an act for which surety was held liable under a bond specifying indemnification for "loss caused to the insured through the failure of any of the employees, acting alone or in collusion, with others, to perform faithfully his duties or to account properly for all monies and property received by virtue of his position or employment during the bond." Busbee v. Reserve Ins. Co., 243 Ga. 371, 254 S.E.2d 324 (1979).

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, § 130.

C.J.S.

- 67 C.J.S., Officers and Public Employees, §§ 476, 489.

ALR.

- Jurisdiction of action upon a bond of a public officer of another state or country, 26 A.L.R. 1001.

Personal liability of public officer for refusing to grant application for license, 85 A.L.R. 298.

Personal liability of officers to holders of invalid public money obligations, 87 A.L.R. 273.

Liability on bond of public official or employee as affected by change in principal's duties, 94 A.L.R. 613.

Liability of officer charged with duty of keeping record of instruments affecting title to or interest in property for mistakes or defects in respect to records, 94 A.L.R. 1303.

Liability of public officer or his bond for the defaults and misfeasances of his clerks, assistants, or deputies, 102 A.L.R. 174; 116 A.L.R. 1064; 71 A.L.R.2d 1140.

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.

Liability of sureties on bond of public officer as affected by fact that it was not signed by him, 110 A.L.R. 959.

Liability of surety on official bond as affected by principal's immunity from liability for malicious prosecution as an officer charged with duty of enforcing criminal laws, 116 A.L.R. 1348.

Personal liability of public officer or sureties on his bond for nonperformance or improper performance of a duty imposed upon a board of corporate body of which he is a member, 123 A.L.R. 756.

Personal liability of public officials or bond for permitting insurance company or other corporation to engage or continue in business without complying with statutory requirements, 131 A.L.R. 275.

Liability on bond of public officer for second or other successive term in respect of funds received by principal during prior term, 132 A.L.R. 1084.

Conduct contemplated by statute which makes neglect of duty by public officer or employee a punishable offense, 134 A.L.R. 1250.

Liability on general bond of public officer for acts covered by a special bond, 140 A.L.R. 1459.

Liability of public officer and his sureties in respect of payments made without compliance with procedure prescribed for payment of claims, 146 A.L.R. 762.

Public officer's bond as subject to forfeiture for malfeasance in office, 4 A.L.R.2d 1348.

Personal liability of tax collector of state or its subdivision for illegal taxes collected, 14 A.L.R.2d 383.

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.

Liability of notary public or his bond for negligence in performance of duties, 44 A.L.R.3d 555.

Liability of notary public or his bond for wilful or deliberate misconduct in performance of duties, 44 A.L.R.3d 1243.

Uninvited entry into another's living quarters as invasion of privacy, 56 A.L.R.3d 434.

Governmental tort liability for injuries caused by negligently released individual, 6 A.L.R.4th 1155.