Coker v. Friedman , 75 Ga. App. 846 ( 1947 )

Where a plaintiff acquiesces in a ruling of the court sustaining a general demurrer to the petition, with leave to amend, by seeking to amend to conform thereto, and the amendment adds no new and material facts, the ruling on the original demurrer is the law of the case, and the court does not err in sustaining a general demurrer to the petition as amended and in dismissing the action.

DECIDED OCTOBER 24, 1947. Mrs. Susie D. Coker brought suit in the Superior Court of Fulton County against B. I. Friedman and C. K. Friedman, a partnership, doing business under the name of Holzman's, residents of Chatham County, and J. E. Henderson and Bryan Leibel, residents of Fulton County for damages resulting from the following allegedly tortious conduct of Henderson, Leibel, and a third tort-feasor, Miss Christine Wing: the defendants' firm, Holzman's, operated a jewelry store at 29 Broad Street, Atlanta; Leibel was in charge of the store as general manager and had full charge, direction and management of the business and the store, including the employment of all the employees thereof; Henderson was sales manager of the business and store; the plaintiff was an employee of the defendant's jewelry store and was charged with the duty of receiving and returning articles of jewelry brought to the store for repair; having previously incurred the enmity of a fellow employee, Miss Wing, by reason of her criticism of the latter's carelessness in receiving jewelry to be repaired when Miss Wing performed the plaintiff's duties while the plaintiff was out for lunch, the plaintiff became the victim of a conspiracy, initiated by Miss Wing, on the part of Mr. Leibel and Mr. Henderson, acting in conjunction with her, and in the prosecution and within the scope of the firm's business, whereby the plaintiff was placed in the false position of having stolen a customer's ring, was accused of theft in the presence of other of the firm's employees and the firm's customers, was falsely imprisoned in the jewelry store for more than an hour after closing time, and when she refused to pay the arbitrary price placed on the customer's ring by the manager of the store, Leibel, was finally and wrongfully discharged and her reputation was ruined and her health so gravely injured that she has been under the care of physicians ever since. The defendants, B. I. Friedman and C. K. Friedman, doing business as a partnership under the name of Holzman's filed general and special demurrers to the petition and the court sustained the general demurrer with leave to amend. No ruling was made on the special demurrers. The plaintiff amended the petition by adding to every paragraph of the petition wherein the names of Leibel, Henderson, or Wing occurred the statement that they in all and singular matters affecting the plaintiff were acting in the prosecution of their employers' business and within the scope of their respective employments. The court sustained the defendant firm's general demurrer to the petition as amended and dismissed the case as to it and the plaintiff excepted. Whether or not the original petition set forth a cause of action against the defendant partnership, the plaintiff, without excepting, acquiesced in the court's ruling sustaining the general demurrer, with leave to the plaintiff to amend, by amending and seeking to conform to that order, and that ruling, right or wrong, became the law of the case under those circumstances. Rivers v. Key, 189 Ga. 832 (7 S.E.2d 732); Jones v. Butler, 191 Ga. 126 (12 S.E.2d 326);Kumpe v. Hudgins, 39 Ga. App. 788 (149 S.E. 56); ElijahA. Brown Co. v. Wilson, 191 Ga. 750 (13 S.E.2d 779). The only question for consideration here is whether the amendment so cured the defects in the original petition as to set forth a cause of action against the partnership. The petition must be construed in the light of the facts set forth and not solely in view of the bare allegation, in the nature of a conclusion of the pleader. Atlanta Coca-Cola Bottling Co. v. Brown, 46 Ga. App. 452 (167 S.E. 776). The original petition contained allegations showing the nature of the defendant partnership's business to be that of operating a jewelry store; that the defendants, Leibel and Henderson, were respectively general manager and sales manager of the store; that they as coconspirators and instigated by Miss Wing, activated by personal animosity for the plaintiff, sought to have the plaintiff discredited with and discharged by her employers; and that Leibel, acting as general manager of the store, and having full knowledge of the real truth of the matter, caused the plaintiff's enumerated damages, humiliation and discharge, which is to say that he was acting within the prosecution and scope of his employment at the time. These allegations were adjudged to state no cause of action against the defendant partnership upon the hearing of its original demurrer to the original petition. The plaintiff's amendment did not add a single new and material fact to the petition, but merely the pleader's conclusion that the defendants, Leibel and Henderson, were acting in the prosecution of the partnership's business and within the scope of their respective employments in effectuating the alleged conspiracy.

Therefore the court did not err in sustaining the general demurrer to the petition as amended, and in dismissing the action as to the defendant partnership.

Judgment affirmed. Sutton, C. J., and Parker, J., concur.