Opinion
44428.
ARGUED APRIL 9, 1969.
DECIDED APRIL 24, 1969.
Action for damages. Douglas Superior Court. Before Judge Winn.
Jones, Kemp Osteen, Charles M. Jones, for appellant.
Arthur K. Bolton, Attorney General, Marion O. Gordon, Courtney Wilder Stanton, Assistant Attorneys General, Smith, Cohen, Ringel, Kohler, Martin Lowe, H. A. Stephens, Jr., for appellees.
1. Lack of choice as to where a surgical operation will be performed does not ordinarily constitute duress so as to render voidable an operative permit signed by the patient. In any event, duress is not shown where the lack of choice results not from unlawful pressure but from lawful confinement in the penitentiary.
2. The bond in the nature of a policy of fidelity insurance sued upon in this case is not, as claimed, a statutory official bond executed pursuant to Code Ann. § 77-316, and consequently can be enforced only according to the terms and obligations as stated in the bond.
ARGUED APRIL 9, 1969 — DECIDED APRIL 24, 1969.
Gerald Price, performing work as an inmate at the Gwinnett County Prison Work Camp, suffered a fracture of his right ankle and was removed to the State Penitentiary at Reidsville, where an operation was performed upon him allegedly without his consent by Dr. J. J. Arrendale, employed by the Board of Corrections as the physician in charge of all inmate patients. Price brought suit against Dr. Arrendale for personal injuries in two counts, the first proceeding on the theory of assault and battery committed by way of the operation without his consent (Cf. Irwin v. Arrendale, 117 Ga. App. 1 ( 159 S.E.2d 719)), and the second on the theory of negligence of Dr. Arrendale in improperly performing the surgery.
Dr. Arrendale filed a motion for summary judgment as to Count 1 of the complaint, attaching the affidavit of James Register, the correctional lieutenant assigned to the hospital floor. Register swore that Price, in contemplation of surgery to his ankle, executed an operative permit, a copy of which was attached; that the execution of it was voluntary on the part of Price; and that Register was present and witnessed the execution of the operative permit.
Plaintiff filed a counter-affidavit to Dr. Arrendale's motion, asserting that his consent was obtained through duress and was not freely and voluntarily given, and thus sought to raise a genuine issue as to a material fact on the matter of duress in signing the operative permit. The lower court granted Dr. Arrendale's motion for summary judgment as to Count 1, and Price appeals.
Also named as a defendant in the complaint was American Casualty Company of Reading, Pennsylvania. It was alleged that Dr. Arrendale had posted a surety bond to guarantee the performance of his duties and that American Casualty was surety on the bond. American Casualty filed, inter alia, an "affirmative motion to dismiss" amounting to a motion for summary judgment. Attached was an affidavit by the staff attorney of Continental National American Group of Insurance Companies, of which American Casualty is a member, attesting, inter alia, that the obligation sought to be sued on names as insured/obligees the State Board of Corrections and Georgia Prison Industries Administration and is a public employees blanket bond by the terms of which American Casualty undertook to indemnify the Board of Corrections and Prison Industries Administration 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 and to account properly for all monies and property received by virtue of his position or employment during the bond period. . ." Attached to this affidavit was a specimen copy of the form of bond involved. There is no principal named in the bond — only an agreement by American Casualty, as "surety," to indemnify the obligee for the use and benefit of the insured as above stated.
The lower court granted American Casualty's motion, and plaintiff appeals from this judgment.
1. The basis asserted for the claim of duress in signing the operative permit consists of plaintiff's statements in his counter-affidavit that he requested that any operation to be performed on his ankle be done at Talmadge Memorial Hospital in Augusta; that these requests were refused, Dr. Arrendale stating that any operation would be performed by him at the prison or there would be no operation; that on the morning of the operation he was given a permit and told to sign it or forget about any medical attention; and that he had no choice but to sign because he could not go on suffering the the pain.
These averments of plaintiff's affidavits are insufficient as a matter of law to establish duress. There are no statements that he was actually forced by the prison authorities to undergo the operation. The gist of the matter is plaintiff's lack of choice as to where and by whom the surgery was to be performed. We do not conceive that such lack of choice in and of itself constitutes duress. In any event plaintiff was lawfully incarcerated, and his lack of choice was not the result of unlawful pressures but was rather the result of his confinement. Being lawfully confined plaintiff was rendered unable to exercise the options normally open to a person not laboring under such restraint. If the State were required to afford all of its prisoners a choice as to where and by whom they are to be treated in the event of injury it would impose an unreasonable burden on the State, both as to cost and as to security. "Legal imprisonment, if not used for illegal purposes, is not duress." Code § 20-503.
There was no error in granting Dr. Arrendale's motion for summary judgment as to Count 1 of the complaint.
2. Nor was there error in granting American Casualty's motion to dismiss as to it, treating the motion as one for summary judgment. See Brackett v. H. R. Block Co., 119 Ga. App. 144 ( 166 S.E.2d 369). It is argued by plaintiff that the bond is a statutory one pursuant to Code Ann. § 77-316. That section provides in general that the Board of Corrections shall require the chief custodial officer of penal institutions to execute a bond with good securities, conditioned, inter alia, to truly and faithfully discharge his duties. It further provides that other officials and employees may be required by the board to give bond; and that bonds given under this section shall be liable for any breach by a deputy, agent, or subordinate of such principal, whether expressed thereon or not, and such bonds shall be subject to Code Ch. 89-4. See, e.g., Code § 89-418, providing that a bond executed under this chapter 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.
However, the bond here in question is not a statutory one pursuant to Code Ann. § 77-316 of which plaintiff may have the benefit, but is rather what has been termed a bond "in the nature of a policy of fidelity insurance" insuring only the board and the Prison Industries Administration for loss caused to the insured through acts of the employees. Mayor c. of Brunswick v. Harvey, 114 Ga. 733, 735 ( 40 S.E. 754). Contrary to the allegations of the complaint, the evidence before the court discloses that Dr. Arrendale posted no bond. Neither a custodial officer nor Dr. Arrendale is an obligor or principal on the bond, and in order to comply with Code Ann. § 77-316 the custodial officer or Dr. Arrendale should be one of the obligors. Hence, the bond is not a statutory official one but is a "voluntary" or "common law" bond and can be enforced only according to the terms and obligations as stated in it. Mayor c. of Brunswick v. Harvey, supra; Collins v. United States Fidelity c. Co., 72 Ga. App. 875 ( 35 S.E.2d 474). Since the only obligation of the bond is, in consideration of the premium, to indemnify the board and the Prison Industries Administration for "Loss caused to the insured through the failure of any of the employees . . . to perform faithfully his duties," it follows that the plaintiff may not maintain this suit jointly against American Casualty on the bond. Compare Fidelity-Phenix Co. v. Malldin, 118 Ga. App. 401 ( 163 S.E.2d 834), where the warden of a public works camp executed as principal a statutory official bond under Code Ann. § 77-316.
Judgment affirmed. Bell, P. J., and Deen, J., concur.