A-1 Bonding Service, Inc. v. Hunter , 125 Ga. App. 173 ( 1971 )

Deen, Judge.

When the case was here before on motion to dismiss for failure to state a claim (Hunter v. A-1 Bonding Service, 118 Ga. App. 498, 501 (164 SE2d 246)) it was held, as to the employees: "That the purpose of their return may have been partly personal, resulting from an argument that had developed, would not bar a recovery if the purpose was also to accomplish the mission on which they had been sent out. To bar a recovery it must appear that the mission was purely personal, disassociated from any business of the master.” It was also pointed out (p. 500) that an allegation that the employees left plaintiff’s home, "armed themselves with pistols and returned for the purpose of killing plaintiff’s husband” might in itself justify an adverse verdict as constituting an admission that the employees were engaged in a personal mission "unless it has been withdrawn, or the evidence clearly demonstrates the contrary to be true.” On the return of the case this allegation was in fact stricken. After being stricken it no longer amounted to an admission in judicio that these employees (who are not sued in this action) were engaged in a personal mission so as to bar the action against the employer. See Iteld v. Karp, 85 Ga. App. 835 (70 SE2d 378). Further, the stipulation by the defendant that Thompson and Bowers were its employees and were engaged in the duties of their employment in going to the Hunter house to look for Willie B. Hunter does not amount to an admission that they were within the course and duties of their employment in killing his brother. This is a question of evidence not controlled by the pleadings and stipulations in this case.

The testimony of the bondsmen is that as they stopped their car near the Hunter home the deceased approached with a pistol in his right hand and a shotgun in his left hand, said "I am going to kill you,” stuck the pistol "at” or "in” the car and, before he fired it, was shot by Thompson who picked up and fired a gun lying on the seat between him and Bowers. Hunter fell; Bowers, who had apparently gotten out of the car, jumped in and they backed the car to the corner where the police were sent for. They all returned to the scene and found a pistol holster lying under the deceased but neither a pistol nor a shotgun. The appellant contends that these weapons were removed in the absence of Thompson and Bowers and that, since the latter were the only eyewitnesses to the shooting, a verdict for the defendant is demanded under the ruling in Hanna v. Estridge, 59 Ga. App. 182, 184 (200 SE 174): "Where the killer is connected with the homicide by his statements alone a jury must accept the entire statement if it shows complete justification.” We do not agree that the employees are connected with this homicide by their statement alone. Although no one else actually saw Thompson pull the trigger, a number of people arrived at the scene almost immediately and before they had left in search of the police. One of them, a young daughter, whose testimony at a former hearing was admitted in evidence by stipulation, said that she saw Thompson shoot her father and pointed him out as the man who did it; she also said that her daddy had a pistol in a holster while painting the house before their arrival, and that she saw a shotgun lying beside him after he was shot. Her testimony, while in some respects favorable to the defendant’s case, is also sufficient to identify Thompson as the person who shot her father or at the very least as the man she recognized in the automobile immediately after the shot was fired. Others who arrived on the scene testified in a manner which corroborated this statement. Thompson immediately told a bystander he had shot Hunter and to send for the police, a statement which was a part of the res gestae of the occurrence. Accordingly, we do not have a situation where the only evidence pointing to the perpetrator of a homicide is the statement and accompanying explanation of the actor, but a situation where the issue is not identity of the person but the reason which prompted him to act.

Nor is it ground for a directed verdict in favor of the defendant that the plaintiff’s attorney said in his concluding argument: "Bowers and Thompson went back down there for one purpose only and they accomplished that purpose,” even though, had the jury believed this statement literally, they would have been bound to find for the defendant if they believed Bowers and Thompson returned for the sole purpose of killing Hunter, and that such act had not been authorized by the defendant. Chapman v. State, 90 Ga. App. 564 (83 SE2d 572), cited by the appellant, is not authority to the contrary. It holds merely that a stipulation of the truth of certain proposed evidence by the attorney for the objecting party will render the admission of the evidence harmless error.

(a) "If the tort be committed, not by reason of the employment, but because of matters disconnected therewith, the master would not be liable.” Frazier v. Southern R. Co., 200 Ga. 590, 593 (37 SE2d 774). Whether or not the servant was acting within the scope of his employment at the time of the injury is usually a jury question. Ford Motor Co. v. Williams, 108 Ga. App. 21, 25 (132 SE2d 206); Atlanta Hub Co. v. Jones, 47 Ga. App. 778 (2) (171 SE 470); Personal Finance Co. of Macon v. Whiting, 48 Ga. App. 154 (4) (172 SE 111); American Security Co. v. Cook, 49 Ga. App. 723 (2) (176 SE 798); Candace v. Newton, 91 Ga. App. 357, 358 (85 SE2d 616). The court charged the jury on this subject: "I further instruct you the act of a servant may be within the scope of his employment though not done at the master’s direction or with his permission and even if his master does not know the act is being committed. The test is whether the act is done by the servant in connection with the master’s business and for the purpose of promoting the master’s interest. It is not necessary that the thing done be wise or beneficial to the master, provided the servant’s purpose is to benefit the master.”

This was the only instruction available to the jury by which they could determine, if they concluded as they might have done under some of the evidence that the killing was not in self-defense, whether or not the defendant employer would be liable. The ultimate fact here depends on a jury determination of the intent of the employees. Thereafter, however, the court charged: "In the event you should find Garland L. Thompson committed a wrongful act which was not justified under the law and if you find such wrongful act was the proximate cause of the death of Herman Charles Hunter, then and in that event the complainant would be entitled to recover,” against the bonding company. Objection to this charge was made and overruled. Regardless of any prior agreement between counsel as to the elimination of the scope of employment issue from the case, when the court charged in effect that the master might be responsible for the act of the servant even though not done at the master’s direction, and then charged positively that A-l Bonding Company would be liable if Thompson committed a wrongful act which was the proximate cause of Hunter’s death, the jury was left with only two alternatives — to find that Hunter attacked and Thompson shot in self-defense, or to find A-l Bonding Company liable regardless of whether Thompson and Bowers returned to arrest Willie B. Hunter or returned for the personal satisfaction of punishing Herman Charles Hunter for his prior assault on Bowers.

It is contended that the issue of scope of employment had been eliminated from the case by a certain colloquy which ended as follows: "The Court: You contend now that your people were agents and acting within the scope of their employment?” Counsel for defendant: "Yes, sir, Your Honor, in going out there to pick up Willie B. Hunter they were entirely within the scope of their employment. That was their job.” This does not amount to a stipulation that if the reason for going there was personal animosity and not the intent to arrest Hunter that the act was still to be considered within the scope of employment. The instruction was harmful because the charge as a whole called the jury’s attention to the issue, and informed them that scope of employment might be co-existent with lack of instruction or even knowledge by the employer, and then informed them specifically that if the homicide was not justifiable the employer was liable. Such instruction was error which might well have been extremely prejudicial to the defendant, and therefore requires a reversal of the case.

(b) The question has been raised whether counsel’s objection to the above quoted charge sufficiently pointed out the error complained of under the wording of the requirement stated in Ga. Power Co. v. Maddox, 113 Ga. App. 642 (1) (149 SE2d 393): "The grounds of error urged must fully apprise the court of the error committed and the correction needed to cure the error.” This language is too broad, as suggesting that counsel is required to suggest a correct instruction in place of that objected to, where the statutory requirement is only that he shall state "distinctly the matter to which he objects and the grounds of his objection.” Code Ann. §70-207 (a). Rulings in Ga. Power Co. v. Maddox, 113 Ga. App. 642, supra, and any other cases requiring a greater particularity of objection than that required by the Code section are hereby specifically disapproved. The addendum written by Chief Judge Bell, speaking for the court, is adopted and made a part of this majority opinion.

In arriving at the value of the life of the decedent "the jury is not bound to find that lifetime earnings reduced to present value is the full value of the life of the decedent, but such is an aid only to the jury in making such determination. Standard Oil Co. v. Reagan, 15 Ga. App. 571, 572 (5, 6) (84 SE 69).” Rhodes v. Baker, 116 Ga. App. 157 (4) (156 SE2d 545); Bulloch County Hospital Authority v. Fowler, 124 Ga. App. 242 (183 SE2d 586). Potential earning capacity may be considered. In the present case, although the actual earnings of the decedent for the past two years did not, considered in connection with the Carlisle mortality and annuity tables, equal the $60,000 verdict returned as the value of the remainder of his life reduced to present cash value, the jury was not limited by the employment record, which showed that the employment of the deceased was very sporadic but that, had he worked continuously, his earnings would have been well within the range of the verdict. The jury therefore had a right to consider earning potential in connection with the testimony of the widow as to the fact that he was laid off during inclement weather and also that he had been at times in bad health.

Whether or not the deceased was convicted several years prior to this occurrence for illegal possession of a pistol has no relevancy whatever to the question of whether at the time of his death he was in possession of firearms. The conviction records were properly excluded.

Judgment of the trial court denying the motion for judgment notwithstanding the verdict affirmed; judgment denying the motion for new trial reversed.

Jordan, P. J., and Pannell, J., concur. Hall, P. J., and Eberhardt, J., concur, except as to Division 5, to which they dissent. Jordan, P. J., Hall, P. J., Eberhardt and Deen, JJ., concur specially. Addendum by Bell, C. J., with all participating judges concurring. Bell, C. J., and Quillian, J., dissent. Whitman, J., not participating because of illness; Evans, J., disqualified.