Du Pree v. Babcock

• Decision Date: 25 November 1959
• Docket Number: No. 1,No. 37962,37962,1
• Citation: 100 Ga.App. 767,112 S.E.2d 415
• Parties: LILLIAN B. DU PREE v. C. D. BABCOCK
• Court: Georgia Court of Appeals

Page 415

112 S.E.2d 415

100 Ga.App. 767

LILLIAN B. DU PREE v. C. D. BABCOCK.

No. 37962.

Court of Appeals of Georgia, Division No. 1.

Nov. 25, 1959.

Syllabus by the Court.

The trial court did not err in sustaining the plaintiff's motion for summary judgment as to liability and leaving the question of damages for the jury.

Charles D. Babcock sued Mrs. Lillian B. DuPree, doing business as Clovis Club, and Eugene J. Brandt to recover for injuries received because of certain alleged acts of the defendant Brandt, while acting in the scope of his employment for Mrs. DuPree. Both the defendants filed general and special demurrers which the trial court overruled. Thereafter the plaintiff filed a motion for summary judgment as to the issue of liability only, based on the pleadings and a supporting affidavit filed by the plaintiff. The trial court granted the summary judgment, as to both defendants, on the issue of liability but expressly declared that the amount of damages and the question of malice, alleged in the petition, were not adjudicated by such judgment. Mrs. DuPree, in her writ of error assigns error only on the judgment granting the summary judgment.

Cook, Llop & Long, Joseph L. Llop, Atlanta, for plaintiff in error.

Gambrell, Harlan, Russell, Moye & Richardson, James C. Hill, Harold N. Hill, Atlanta, for defendant in error.

NICHOLS, Judge.

1. The defendant Mrs. DuPree did not assign error on the judgment overruling her general and special demurrers to the plaintiff's petition and such judgment is therefore established as the law of the case. See Section 2 of the act of 1957 (Ga.L.1957, pp. 224, 229; Code Ann., § 6-701) which provides that such judgment is now reviewable when a writ of error is first presented in this court, and all questions which may be presented in the main bill of exceptions or in a cross bull of exceptions, but are not, are deemed waived. Hodgkins v. Marshall, 102 Ga. 191(1), 29 S.E. 174. See also Carmichael Tile Co. v. McClelland, 213 Ga. 656(2), 100 S.E.2d 902.

2. The following allegations of the petition were admitted by the defendant's answer of the defendants. 'The defendants, against whom this action is brought, are Mrs. Lillian B. DuPree, who resides at 1759 Wilmont Drive, N. E., DeKalb County, Georgia, and who does business under the name of the 'Clovis Club', and Eugene J. Brandt, who resides at 1079 Burton Drive, N. E., DeKalb County, Georgia. Said defendants are subject to the jurisdiction of this court. On or about March 28, 1957, the defendant Mrs. Lillian B. DePree held wine and beer permits, approved by the Mayor and Board of Aldermen of the City of Atlanta, on September 28, 1955, for the sale of wine and beer at 614 Glen Iris Drive, N. E., Atlanta, Georgia. On or about March 28, 1957, the defendant, Mrs. Lillian B. DuPree was the proprietor of the 'Clovis Club' located at 614 Glen Iris Drive, N. E., Atlanta, Fulton County, Georgia. The 'Clovis Club', a self-styled 'Sho-Bar', invited the public to attend a 'Girl Show' and to purchase beer, wine, champaign, liquor and other alcoholic beverages. On the said date the defendant Eugene J. Brandt was the manager and operator or the 'Clovis Club', having been employed by the defendant Mrs. Lillian B. DuPree. The defendant Eugene J. Brandt as manager and operator of the 'Clovis Club' had the duty of promoting the sale of alcoholic beverages, the duty of seeing that the customers were entertained, the duty of seeing that the 'Club' closed at an established time, and the duty of supervising other employees. At or about 1:30 a. m. on March 28, 1957, and at the conclusion of the last act of the show, the defendant Brandt secured from the comedian in the show a pistol which was loaded with blanks and which was made up like a machine gun.' In addition to the above allegations, the petition also alleged, among other things, that the defendant Brandt while acting within the scope of his employment walked through the 'Clovis Club' discharging the pistol in the air to amuse the customers, and continuing to amuse the customers suddenly and without warning pointed the pistol at the plaintiff's midsection and pulled the trigger and the exploding gun powder caused certain alleged painful burns and other injuries. After admitting the allegations quoted above, and denying other allegations the defendants alleged the following: 'For further answer defendants say that the defendant Brandt, acting as an individual on the morning in question, after the entertainment was concluded and after it was time for the Clovis Club to be closed, purely as a prank and without malice or desire to harm anyone, did fire the dummy machine gun which was loaded with 22 blank ammunition, and it is possible that the plaintiff may have accidentally been singed thereby. Defendants allege that the singeing was completely superficial and could not have caused any pain and suffering such as is alleged in the petition, or have been the approximate cause of any cyst which the plaintiff might have developed in November, 1957. Defendants allege that if any such cyst did develop the same was purely coincidental and not the result of any injury received by the plaintiff growing out of the occurrence described in the petition.'

The defendant's contentions are: 1. The case is not one for summary judgment since she did not admit, but expressly denied, the allegations of the petition that: 'The defendant Brandt in shooting said pistol at all times referred to herein was acting within the scope of his employment by the defendant Mrs. Lillian B. DuPree.' and 2. The case is not one for summary judgment because even if liability exists and is adjudicated by summary judgment adverse to her, the same issues would have to be tried and presented to the jury in view of the allegations in the petition as to malice and the prayers for exemplary damages. $Taking the above contentions of the defendant Mrs. DuPree in the order set forth above it is seen that what she is really seeking to assert in her first contention is that although the defendant Brandt was her employee, agent and servant, and was charged with the duty of ...