Cooper v. Ricketts

• Decision Date: 08 July 1975
• Docket Number: No. 50455,50455
• Parties: S. L. COOPER, Jr. v. J. G. RICKETTS, Warden.
• Court: Georgia Court of Appeals

Page 503

217 S.E.2d 503

135 Ga.App. 346

S. L. COOPER, Jr. v. J. G. RICKETTS, Warden.

No. 50455.

Court of Appeals of Georgia.

July 8, 1975.

Selmer L. Cooper, Jr., pro se.

Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Richard L. Chambers, G. Thomas Davis, Asst. Attys. Gen., Kirby G. Atkinson, Atlanta, for appellee.

STOLZ, Judge.

The plaintiff appeals from the grant of the defendant's motion for summary judgment.

1. The plaintiff's first five enumerations of error allege the violation of various constitutional rights. The record does not reveal that these attacks were made in the trial court, hence they cannot be considered when raised for the first time on appeal. O'Kelley v. Skinner, Wilson & Beals, 132 Ga.App. 792(3), 209 S.E.2d 242 and cit.

2. The plaintiff's sixth enumeration of error complains that the trial judge erred in not allowing the plaintiff to enter sworn affidavits in his case to further prove his case to the court. A review of the record reveals that the trial judge did sustain the defendant's motion to strike two affidavits which were attached to the plaintiff's complaint as Exhibits B and C, respectively. The plaintiff did not offer any evidence in opposition to the defendant's motion for summary judgment, including the aforesaid affidavits. The affidavits of possible witnesses for plaintiff were not properly a part of the complaint and were correctly stricken by the trial judge.

3. The defendant warden swore by affidavit that at no time had he 'had personal contact with, possession of, or personal control over any of the personal belongings' which are the subject of the plaintiff prisoner's present trover action, and that neither he nor any employee of the Georgia Diagnostic and Classification Center had damaged or caused the loss of, or permitted damage or loss to the plaintiff's personal property. This unopposed affidavit established that he had never had possession of any property belonging to the plaintiff. The transcript reveals the following testimony by plaintiff: 'Q. You have no personal knowledge that he took anything? A. No, sir. Q. You don't have any evidence from anybody else that he took anything? A. No, sir.' Thus there appears to be no contradiction of the facts set forth in the defendant's affidavit. "As a general rule, a public officer is not liable under the respondeat superior doctrine for acts or omissions of his subordinates.' 67 C.J.S. § 128 Officers p. 423. See Mathis v. Nelson, 79 Ga.App. 639, 640(3), 54 S.E.2d 710.' Parris v. Slaton, 131 Ga.App. 92(2), 205 S.E.2d 67. See also Peavy v. Chavers, 121 Ga.App. 354, 173 S.E.2d 749.

Judgment affirmed.

BELL, C.J., and QUILLIAN, CLARK and MARSHALL, JJ., concur.

WEBB, J., concurs in the judgment.

DEEN, P.J., and EVANS, J., dissent.

PANNELL, P.J., concurs in the result of the dissent.

DEEN, Presiding Judge (dissenting).

1. Personal property, no less than real estate, may not be seized by a governing authority without just and adequate compensation, and where such property is taken by an official for a public purpose without prior payment, an action for the value of the personalty is the proper remedy. Elbert County v. Brown, 16 Ga.App. 834(6), 86 S.E. 651.

2. Where the employee of a governmental subdivision seizes the personal property of another, ostensibly in the process of carrying out his official duties, but in fact illegally and not for a public purpose, a trover action against such official is a proper remedy. Norred v. Dispain, 119 Ga.App. 29, 166 S.E.2d 38. 'While a suit cannot be maintained against the State without its consent, and this inhibition cannot be evaded by making an action nominally one against the servants or agent of the State when the real claim is against the State itself and it is the party vitally interested, yet a suit may be brought against a State officer or agent when he acts illegally and in an unauthorized manner.' Cannon v. Montgomery, 184 Ga. 588(2), 192 S.E. 206.

3. This suit is a trover action by a prisoner who claims that an officer of a state penal institution took personal property (which does not at this point appear to be contraband) from him and refuses to account for it. If the prisoner, instead of 'masculine tape' and other such articles, had lost a large sum in cash under the same circumstances, would we say, as this opinion does, that the immunity adhering in the state also insulates its agent the superintendent 'since any judgment in favor of the plaintiff would have to be satisfied from assets of the state?' If, instead of taking the property from a prisoner, a police officer entered your home or mine and removed it, would the same reasoning apply?

Even a convict (who may be serving several years of incarceration for theft) is entitled to be protected from theft on the part of the state; otherwise the state is no better than the convict. I do not believe the doctrine of governmental immunity is alone a sufficient reason for holding that this plaintiff is not entitled to bring trover for his property.

EVANS, Judge (dissenting).

The lower court sustained defendant's motion for summary judgment, and I respectfully dissent.

This is a trover suit by Selmer L. Cooper, Jr., a state prisoner, for the recovery of certain personal property which disappeared soon after he was transferred from Reidsville Prison to Jackson Diagnostic Center.

His complaint alleges that on April 15, 1974, at approximately 11 a.m., he was ordered to pack his personal property and prepare to transfer from Reidsville Prison to Jackson Diagnostic Center; that he arrived at Jackson Diagnostic Center on the following day at approximately 2:30 a.m., and was required by those in authority to leave his property in the hallway while he was shuttled to an area of the new prison known as H-1. Later, during that day he learned that his personal property was missing.

An itemized list of the property is attached to his complaint, which appear to be tools used in leatherwork, of the value of $240.90.

This action was brought against Dr. James G. Ricketts, defendant, as Superintendent of the Diagnostic Center at Jackson, Georgia.

Defendant filed an answer, followed by a motion for summary judgment.

Plaintiff attached to his complaint two affidavits by fellow prisoners showing they knew plaintiff had the described personal property in his possession on the bus trip from Reidsville to Jackson, but on motion of defendant, the trial court properly struck these two affidavits. But plaintiff's own affidavit was attached to the complaint and remained a part thereof, whereas defendant's answer was not sworn to.

The majority opinion is short and concise. It correctly holds that plaintiff's constitutional attacks could not be considered because they had not been made in the trial court. But now we come to the gist of the majority opinion which is clearly erroneous: 'The plaintiff did not offer any evidence in opposition to the defendant's motion for summary judgment, including the aforesaid affidavits. The affidavits of possible witnesses for plaintiff were not properly a part of the complaint and were correctly stricken by the trial judge.'

1. The majority opinion mistakenly travels on the assumption that the burden was on the plaintiff, but the contrary is true. Holland v. Sanfax Corp., 106 Ga.App. 1, at pages 4, 5, 126 S.E.2d 442; McCarty v. National Life etc. Co., 107 Ga.App. 178-179, 129 S.E.2d 408. The majority opinion obviously overlooks the fact that plaintiff's complaint was verified by the affidavit of plaintiff, and absolutely no duty devolved upon plaintiff to submit additional affidavits controverting the purported affidavit of defendant which was offered to support his motion for summary judgment.

2. Plaintiff was not represented by counsel, this being on his part a 'pro se' action. His complaint was in two sections, the first containing five lettered paragraphs, and the last containing a summary of three lettered paragraphs. Defendant was represented by counsel and the only paragraph of complaint denied by the answer is in this language: 'Defendant denies the allegations contained in paragraph (B) of petition.' Under this vague language, it cannot be determined whether he was denying the first paragraph (B) or the second paragraph (B); and it may be thus construed that he denied nothing in the sworn petition, so far as his answer goes.

3. But now we come to defendant's affidavit. Code Ann. § 81A-156(e) provides wisely that all affidavits supporting or opposing motions for summary judgment must be made on personal knowledge. In a very vague, ambiguous, and general fashion defendant appears to have tried to qualify his affidavit in paragraph 11 thereof by asserting that: '11. This affidavit is based on personal knowledge.' Are we required to accept such statement when the remainder of the affidavit (see Tr. 17, 18, consisting of 12 paragraphs) shows that it was not made on personal knowledge? No, indeed! The law provides that even though the affidavit omits the statement that it is made on personal knowledge, it may yet be considered if it is shown from the facts stated therein that it is in fact made on personal knowledge. See: Holland v. Sanfax Corp., 106 Ga.App. 1, 5, 126 S.E.2d 442, supra. By the same reasoning, we do not have to accept a statement that the affidavit is made on personal knowledge when we can clearly discern from the statements made therein that it was not made on personal knowledge.

4. The affidavit is made to serve as evidence. As was...