Ford Motor Co. v. Williams, 39915

• Decision Date: 16 May 1963
• Docket Number: No. 39915,No. 1,39915,1
• Parties: FORD MOTOR COMPANY v. Ervin D. WILLIAMS et al
• Court: Georgia Court of Appeals

Page 206

132 S.E.2d 206

108 Ga.App. 21

FORD MOTOR COMPANY v. Ervin D. WILLIAMS et al.

No. 39915.

Court of Appeals of Georgia, Division No. 1.

May 16, 1963.

Rehearing Denied June 17, 1963.

Syllabus by the Court

1. The recasting of a petition and filing of new demurrers and defensive pleadings thereto done pursuant to an order of the court, eliminates any question of 'law of the case' or of acquiescence in rulings on prior demurrers under the provisions of Code Ann. § 81-1001, as amended by Ga.L.1962, p. 682.

2. (a) A principal may be held liable for torts of his agent committed by implied command or with implied assent and while in the scope of the agency.

(b) Allegations that plaintiff's property was seized by an anent whose duty it was to recover property of the principal raise a jury question as to whether the seizure was within the scope of the agency.

3. (a) That an action for trespass is available to one whose home has been wrongfully invaded does not prevent the maintenance of an action by way of a separate count in the petition for an invasion of the right of privacy.

(b) When one's home is wrongfully invaded a right of action accrues for the invasion of the right of privacy although no one was present in the home at the time of the wrongful invasion.

Plaintiff brought his three-count petition against Ford Motor Company, W. Bailey Cawthon and L. M. Banks. ¹ Ford only is involved here, the companion case of the individual defendants being Cawthon v. Williams, post. The basic facts alleged in the amended and redrafted pleadings are as follows: Plaintiff owned his own home in Union City, Georiga; Ford employed one Seiver or Siever 'whose duties included the investigation of thefts from [Ford] and the location and return to [Ford] of any missing property belonging to [Ford]' and all of his alleged acts were performed within the scope of his employment as Ford's agent. On October 7, 1959, Cawthon and Banks, 'acting in concert with and in company with' Seiver, entered plaintiff's home when no one was there and removed 'personal property belonging to plaintiff.' Count 1 further sets out that three marked police cars and a police paddy wagon were driven on to plaintiff's property and that a trespass was committed by driving the cars on to the property, 'by forcing open a window, entering into [plaintiff's] home, and urinating on [plaintiff's] property by' Cawthon. Compensation is sought for 'mental pain and embarrassment, loss of full enjoyment of his home, as well as to deter the defendants from similar acts in the future.' Court 2 alleges that the property seized was various new Ford automobile parts and that, when the parts were returned the next day, they were damaged. Damages are sought for the difference in value at the time of the taking and after the return. Count 3 seeks recovery on much the same facts as alleged in count 1 but states that 'the entry into plaintiff's home by the defendants herein and the removal therefrom of his personal property in a police 'paddy wagon' in the presence on his friends and neighbors was an illegal invasion of the privacy of his home.'

The complete procedural history of the case is set out in Division 1 of the opinion. To the final order overruling all its demurrers Ford excepts.

Hansell, Post, Brandon & Dorsey, J. William Gibson, Atlanta, for Ford Motor Company.

Phillips & Johnson, Ezra E. Phillips, James H. Archer, Jr., Atlanta, for W. Bailey Cawthon on L. M. Banks.

Benj. B. Blackburn, III, Atlanta, for Ervin D. Williams.

EBERHARDT, Judge.

1. Ford contends its last general demurrer should have been sustained because a general demurrer to the original petition was sustained and thus becamse the law of the case. The procedural history of the case begins with the filing of the original petition in two counts on November 18 1959. General demurrers to both counts, as well as duplicity and misjoinder demurrers, were sustained with 30 days granted to amend. After that order, plaintiff amended within the 30 days allowed and four times thereafter. On each occasion, Ford demurred or renewed its demurrers. Finally on July 6, 1962 the plaintiff was ordered to 'file an amendment striking all previous pleadings and setting forth his claim in a completely re-drafted pleading stating his present contentions,' with the defendant ordered 'to file such answers, demurrers and objections as they deem appropriate to the re-drafted pleading.' This the plaintiff did and the recast petition was ordered filed, 'subject to objection or demurrer.' Ford filed some 62 demurrers, general and special, all of which were overruled.

We think that the trial judge's order to recast the petition and refile defensive pleadings eliminated any question of 'law of the case' and also any question of acquiescence under Code Ann. § 81-1001, as amended. See Stuart v. Berry (Berry v. Stuart), 218 Ga. 361, 127 S.E.2d 912; Stuart v. Berry, 107 Ga.App. 531, 130 S.E.2d 838.

2 (a) The next question presented is whether Ford is liable in view of Code § 4-312, which provides 'The principal shall not be liable for the wilful trespass of his agent, unless done by his command or assented to by him.' The Supreme Court has held that Code § 4-312 must be construed in pari materia with Code § 105-108 and, so construed, means that the principal 'may be liable if the trespass was committed by his implied command or implied assent; and if committed within the scope of the agency, the implication will arise as a matter of law.' Planters Cotton-Oil Co. v. Baker, 181 Ga. 161, 163, 181 S.E. 671, 672. The same defense was raised in a factual situation similar to that sub judice and the court concluded it had no merit in Young v. Western & A. R. R. Co., 39 Ga.App. 761, 768, 148 S.E. 414.

(b) Ford further argues that the allegations do not show its agent to have been in the scope of his employment because his duties are alleged to be to recover his employer's property and the petition clearly alleges that the property seized belonged to plaintiff. The allegation that defendant's agent entered plaintiff's home 'for the purpose of removing therefrom personal property belonging to the plaintiff,' if taken alone, may lend credence to Ford's position. However, on general demurrer, a petition, like a charge of the court, ought not to be 'torn to pieces and scattered in disjointed fragments' (Brown v. Matthews, 79 Ga. 1, 4 S.E. 13) but should be considered as a whole, for the demurrer 'goes to the whole pleading to which it is addressed.' Beck & Gregg Hardware Co. v. Associated Transport, Inc., 210 Ga. 545(3), 81 S.E.2d 515.

We are aware of the strict construction rule, the intonation of which has so often sounded the death knell of a petition, but it should not and does not prevent the court from recognizing the true and full import of all the allegations, going beyond mere trivialities that may seem to lie as obstructions to substantial justice. The rule should not be employed to reach illogical results. '[I]t is a well-settled rule of construction that what is clearly implied is as much a part of a pleading as what is expressed; and considering the instant petition as a whole, we think that the requisite allegation was necessarily implied.' Toler v. Goodin, 200 Ga. 527, 534, 37 S.E.2d 609, 615. While 'a petition must be construed on demurrer most strongly against the pleader, * * * this rule should nto be perverted by unwarranted and strained construction,' Neal v. Stapleton, 203 Ga. 236, 245, 46 S.E.2d 130, 135, 'in violation of its reasonable and necessary intendment.' New Cigar Co. v. Broken Spur, Inc., 103 Ga.App. 395, 119 S.E.2d 133. 'A strained and unnatural construction will not be given [pleadings] in order to raise an inference against the pleader.' National Fire Ins. Co. v. Banister, 104 Ga.App. 13(1), 121 S.E.2d 46. To the same effect, see Williams v. Porter, 202 Ga. 113, 118, 42 S.E.2d 475; Epps v. Southern Bell Telephone & Telegraph Co., 98 Ga.App. 252(1), 105 S.E.2d 361; G. & R. Waterproofing Co. v. Brogdon, 104 Ga.App. 112, 114, 121 S.E.2d 77; Burke v. Life Ins. Co. of Ga., 104 Ga.App. 865, 867, 123 S.E.2d 426. It would be a strained, unnatural and unreasonable construction to say other than that the clear and unmistakable import of the petition here, when taken as a whole, is to allege that the defendant's agent entered plaintiff's home and seized property which he apprehended to be that of his employer, Ford, but which in truth and in fact was that of the plaintiff. The allegation is that the property seized was that of the plaintiff; it is not alleged that it was seized as the property of the plaintiff. Certainly one can not read the petition without getting that impression and, as in Toler, we think that the implication is as much a part of the pleading as the express allegations. In addition, there are sufficient general allegations of agency and whether or not the agent was acting within the scope of his employment is a question of fact for the jury. Atlanta Hub Co. v. Jones, 47 Ga.App. 778, 779(2), 171 S.E. 470 and citations; Personal Finance Co. v. Whiting, 48 Ga.App. 154(2), 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, 85 S.E.2d 616; Delta Finance Co. v. Ganakas, 93 Ga.App. 297, 91 S.E.2d 383. The cases cited by Ford are all distinguishable in that either the allegations of agency were held insufficient or there was no 'connection' of the act complained of with the employment.

3. Thus it is that the general objections raised by Ford are insufficient to support a general demurrer to the entire pleading. No other reasons are advanced against upholding holding count 1 and count 2 and they set out causes of action for general and special damages respectively.

(a) Count 3 is apparently based on an invasion of privacy and requires further examination. Ford insists on its general and special demurrers to count 3. The...