A-1 Bonding Service, Inc. v. Hunter

• Citation: 125 Ga.App. 173,186 S.E.2d 566
• Decision Date: 23 November 1971
• Docket Number: 3,Nos. 1,Nos. 46385,2,A-1,46386,s. 46385,s. 1
• Parties: BONDING SERVICE, INC. v. Jane V. HUNTER (two cases)
• Court: Georgia Court of Appeals

Page 566

186 S.E.2d 566

125 Ga.App. 173

A-1 BONDING SERVICE, INC. v. Jane V. HUNTER (two cases).

Nos. 46385, 46386.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 23, 1971.

Rehearing Denied Dec. 13, 1971.

Syllabus by the Court

1. A party to an action is bound by the statements in his pleadings unless and until they are stricken. Thereafter, the stricken matter may be used for purposes of contradiction or impeachment but it no longer constitutes a binding admission in judicio.

2. Where the employees of the defendant admitted to killing plaintiff's deceased husband, but offered evidence that the killing was in self defense, the jury was not bound to accept this explanation where there was other evidence in the case which both pointed to the defendant's employees as the perpetrators of the act and from which they might have inferred motives other than self protection.

3. Statements by plaintiff's counsel during argument to the jury did not so limit the issues that a finding for the defendant would be demanded as a matter of law.

4. (a) It was error to instruct the jury in effect that if the defendant's employees were not justified in killing plaintiff's husband, plaintiff would be entitled to recover, since this eliminated the issue of whether or not the homicide, if wrongful, was within the scope of the employment or was a matter entirely personal to the employees.

(b) One who objects to the giving or failure to give an instruction to the jury should state distinctly the objectionable matter and his grounds of objection, but no particular formality is imposed upon his manner of doing so. Rulings in Georgia Power Co. v. Maddox, 113 Ga.App. 642, 149 S.E.2d 393 and any other cases requiring a greater particularity of objection than that required by the Code section are hereby specifically disapproved.

5. In arriving at the value of the life of the decedent, the jury is not bound to find that lifetime earnings reduced to present cash value is the full value of the life, but this is an aid to the jury in making its determination.

6. The court properly excluded from evidence prior convictions of the deceased for crimes having no connection with the matter on trial.

This is a wrongful death action filed by the widow, Mrs. Jane Hunter, against A-1 Bonding Service, Inc., in which a verdict was entered for the plaintiff. It appears without dispute that the deceased, Herman Charles Hunter, husband of the plaintiff, was the brother of one Willie B. Hunter; that Garland L. Thompson and J. B. Bowers, employees of the defendant bonding company, were engaged in attempting to locate and arrest Willie B. Hunter because of a bond forfeiture and that this activity was a part of the duties of their employment; that Bowers and another employee, Verdino, had been to the residence of Herman Charles Hunter twice previously on the day in question, and on their second appearance there was some altercation between Bowers and Herman Charles; that on the third occasion Herman Charles again appeared, and that he was shot and killed by Thompson. The evidence was in dispute as to whether Herman Charles was armed as he approached the automobile where the bondsmen were seated, whether he drew a pistol and threatened to kill them, and whether he was shot in self defense.

The defendant corporation appeals from judgments of the trial court on the verdict and the denial of a motion for new trial and for judgment notwithstanding the verdict.

Webb, Parker, Young & Ferguson, Paul Webb, Jr., John Tye Ferguson, Turner Paschal, Atlanta, for appellant.

Larry Cohran, Atlanta, for appellee.

DEEN, Judge.

1. 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, 164 S.E.2d 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 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 S.E.2d 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.

2. 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 byThompson 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 S.E. 174, 176: '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 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 resgestae 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 if the person but the reason which prompted him to act.

3. 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 S.E.2d 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.

4. (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. Sou. Ry. Co., 200 Ga. 590, 593, 37 S.E.2d 774, 776. 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 S.E.2d 206; Atlanta Hub Co. v. Jones, 47 Ga.App. 778(2), 171 S.E. 470; Personal Finance Co. of Macon v. Whiting, 48 Ga.App. 154 (4), 172 S.E. 111; American Security Co. v. Cook, 49 Ga.App. 723(2), 176 S.E. 798; Candace, Inc. v. Newton, 91 Ga.App. 357, 358, 85 S.E.2d 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...