American Surety Co. v. Smith , 55 Ga. App. 633 ( 1937 )

ON MOTION ROE REHEARING.

MacIntyre, J.

The plaintiff in error strenuously contends that we overlooked the principles announced in First National Bank of Rome v. Langston, 44 Ga. App. 465 (161 S. E. 637), where this court said: “The defendant was entitled to have the case tried upon the defense which it elected to assert, and should not have been placed in the attitude of making a further issue as to the agency of the persons alleged to have caused the injury, when this fact was admitted in the answer and there was no contention whatever concerning it. The fact that the defendant was thus placed in a false and losing position as to one issue tended to discredit its position as to other issues, and might have been the deciding factor in the deliberations of the jury.” The cited case is distinguishable from the instant case. In the former case the charge misstated the issues raised by the answer (the pleading), in that the answer showed the defendant admitted the agency, whereas the judge’s charge stated that the defendant denied the agency. In the instant case the petition alleged that certain officers were deputy sheriffs. The answer denied this, and on the trial, at the conclusion of the reading of the pleadings, the defendant admitted in open court that the officers were deputy sheriffs as alleged. Thus we have the answer denying this allegation, and the admission (not in pleading) in open court admitting it. Whatever may have been the technically correct thing for the judge to have charged, it is not reversible error for him to have failed in his charge to reconcile this denial in the defendant’s answer and its admission (not made in his pleading). “Instructions of the court to the jury should be confined to the issues made by the pleadings in the case.” Cordele Sash &c. Co. v. Wilson Lumber Co., 129 Ga. 290 (2) (58 S. E. 860). “Under the 21st rule of court, pleadings can not be dispensed with even by express consent of the parties (Civil Code, § 5652), and certainly they are not to be treated as having been dispensed with by mere implication from what occurs during the progress of the trial.” Martin v. Nichols, 127 Ga. 705, 709 (56 S. E. 995). “Where in a civil case the judge, in stating the contentions of the parties, fully and fairly submitted the issues raised by the pleadings in the case, the failure of the court, in the absence of a request, to instruct the jury upon a contention of one of the parties not raised by the pleadings, although supported by some evidence in the record, is not cause for a new trial. Martin v. Nichols, 127 Ga. 705 (56 S. E. 995); Cordele Sash &c. Co. v. Wilson Lumber Co., 129 Ga. 290 (2) (58 S. E. 860); Hewitt v. Lamb, 130 Ga. 709 (2) (61 S. E. 716, 14 Ann. Cas. 800).” McLean v. Mann, 148 Ga. 114 (2) (95 S. E. 985); Bridges v. Williams, 148 Ga. 276 (2) (96 S. E. 499).

The pleadings are the chart and compass by which the judge is to guide the case. The defendant can not give the judge a chart to follow, and when the judge follows that chart reverse him for so doing. If the evidence or an admission in the nature of evidence is introduced which contradicts the answer, the defendant may amend his answer so as to follow the evidence, and then it would be- the duty of the judge to follow the amended answer as the new and corrected chart, and if he failed in his charge to do so it would be at his peril. Moreover, in this case the judge, in his charge, stated in effect that the plaintiff had made an allegation that these persons were deputy sheriffs, and that the defendant had denied it in the answer; and then, later in the charge, he stated that the defendant admitted that these persons were deputy sheriffs. The judge in his charge stated what the pleadings said, and then stated what the admission (not in the pleading) was. He made no misstatement of the pleading, nor did he make any misstatement as to the admission. We do not think the principle announced in the First National Bank of Rome case, supra, applies to the case sub judice.

In the motion for rehearing the plaintiff 'in error states that it “recognizes the fact that the admission of the sheriff, the principal upon this bond, would have been admissible under the decisions of this court in the cases of Stephens v. Crawford, 1 Ga. 574 [44 Am. D. 680], Dobbs v. Justices, 17 Ga. 625, and Chicago Portrait Co. v. O’Neill, 6 Ga. App. 425 [65 S. E. 161];” but “movant insists and contends that these decisions have no application to a deputy who is not in privity with the surety upon the bond of the sheriff, and that an admission of such deputy would not be admissible against such surety alone, while possibly admissible against the sheriff, bnt would be merely hearsay evidence.” In the instant case the declaration which was in the nature of an admission was made during the transaction of the business for which the defendant as surety was bound. This declaration was made during the transaction of the business of the sheriff by his deputy so as to become a part of the res gestae. Dobbs v. Justices, 17 Ga. 624, 630 (5); Southern Railway Co. v. Brown, 126 Ga. 1, 3 (54 S. E. 911). The deputy sheriff was then acting in his character as the sheriff’s agent. 1 Greenleaf on Evidence (14th ed.), 152, § 113; 2 Id. 584, § 583. The principal is liable for all the acts of his general agents done within the scope of their agency. “The deputy [sheriff] is the general agent of the high sheriff, to do and perform all acts which by law appertain to his office.” Crawford v. Howard, 9 Ga. 314, 318. In American Surety Co. v. Smallon, supra, we decided that the sureties on the sheriff’s bond, who stand for the sheriff’s liabilities, are bound without express stipulation for the act of his deputies. The sureties “trust to his [the sheriff’s] fidelity and competency, and risk his discretion in the appointment of agents [deputies]. Third persons look to him for the faithful execution of his trust, and to the security which he has given. The sureties malee good his official omissions, negligences, or misfeasances, as the law will charge him.” Crawford v. Howard, supra. We can not but feel that these declarations, in the nature of admissions, of the deputy sheriff, made during the transaction of the official business of the sheriff, so as to become a part of the res gestae, were admissible in evidence in the action on the sheriff’s bond against the sureties only.

Rehearing denied.

Broyles, C. J., and Guerry, J., concur.