Hagin v. Powers

• Citation: 231 S.E.2d 780,140 Ga.App. 300
• Decision Date: 08 October 1976
• Docket Number: Nos. 1,2,No. 52090,3,52090,s. 1
• Parties: James HAGIN et al. v. Dottie M. POWERS et al
• Court: United States Court of Appeals (Georgia)

Page 780

231 S.E.2d 780

140 Ga.App. 300

James HAGIN et al. v. Dottie M. POWERS et al.

No. 52090.

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

Oct. 8, 1976.

Rehearing Denied Nov. 2, 1976.

Savell, Williams Cox & Angel, Edward L. Savell, Atlanta, William E. Zachary, Jr., Decatur, for appellants.

Andrews & Myers, Robert E. Andrews, W. Allan Myers, Gainesville, for appellees.

QUILLIAN, Judge.

As a result of a fire in building 'N' in the Forest Vale Apartments, five complaints were filed by tenants of the building against James Hagin and Doug Stacks, plumbing contractors doing business as Hagin-Stacks Company. It was alleged that the fire damage sustained by the various plaintiffs was proximately caused by the failure of defendants' employees to exercise ordinary care while using a torch to make repairs to the plumbing of the building occupied by plaintiffs. The cases were tried together before the court without a jury, resulting in a judgment in favor of the tenants in each of the cases. Defendants appealed, contending that their employees were not within the scope of their employment in making the repairs.

Because the trial court had failed to make a finding as to this key issue, we remanded the appeal for appropriate findings of fact and conclusions of law. Hagin v. Powers, 134 Ga.App. 609, 215 S.E.2d 346. On its second appearance at 136 Ga.App. 395, 221 S.E.2d 245, it was again remanded for the formal separation of the findings of fact from the conclusions of law as required by Doyal Development Co. v. Blair, 234 Ga. 261, 215 S.E.2d 471, which had been decided in the interim. The trial court found that the employees had been within the scope of their employment and assessed the damages of the plaintiffs. These issues are now before us for review. Held:

1. Defendants' employees were performing two classes of plumbing work: (1) the installation of original plumbing in new buildings, and (2) repair and maintenance work on existing buildings. Defendants and their employees testified that no 'repair work' was to be performed without prior approval of one of the defendants. On the week-end prior to the fire there had been a 'hard freeze.' Mr. Cloer, owner of the Forest Vale Apartments was notified that one of the apartments in Building 'N' had a ruptured line and was without water. Employees of defendants were working that day but neither of the defendants could be located. A call to their office resulted in their secretary telling him: 'Go find Stacks and tell him to go fix it.' Mr. Hollowell, one of defendants' employees who performed the repair work witnessed Mr. Cloer making telephone calls in an attempt to locate defendants but finally was told to 'go on over there' and 'he would call them on the phone and make it all right with Mr. Hagin and Mr. Stacks.' During the repair work a 'Presto-lite' torch was used. Shortly after they left the building they noted 'blue smoke, coming out the eve of the roof.'

Under the rule approved by this court in Evans v. Caldwell, 52 Ga.App. 475, 478, 184 S.E. 440, aff'd 184 Ga. 203, 190 S.E. 582; Gann v. Mills, 124 Ga.App. 238, 240, 183 S.E.2d 523: 'if the act is within the class of service which the employee has the authority from the employer to perform, the employer is bound though the employee is forbidden to perform the particular act. If the act is not within the class of service, the employer is not bound.' 124 Ga.App. at 240, 183 S.E.2d at 524.

The repair work by defendants' employees which was the cause of the fire was one of the 'classes' of work being performed by the defendant. In Porter v. Jack's Cookie Co., Inc., 106 Ga.App. 497, 502, 127 S.E.2d 313, 317, this court set forth the test that such work was within the 'class' of work if 'the work the employee was performing was that for which he was hired . . .' 'Thus even though the employee may have violated his instructions or exceeded in some respects the boundaries of his authorized acts, the master is still bound where the disobedience is not such as to take him out of the scope of his employment.' Southern Airways Co. v. Sears, Roebuck & Co., 106 Ga.App. 615, 620, 127 S.E.2d 708, 712. 'Where the employee is doing an act within the class of service for which he is employed, does the fact that he is performing it at a time when he is forbidden to perform it take him out of the scope of his employment? We think it does not.' Porter v. Jack's Cookie Co., Inc., 106 Ga.App. 497, 502, 127 S.E.2d 313, 317, supra.

Moreover, an equally applicable test is the basic one set forth in Evans v. Caldwell, 52 Ga.App. 475(2), 184 S.E. 440, supra: "A master is responsible for the tortious acts of his servant, done in his business and within the scope of his employment, although he does not authorize or know of the particular act, or even if he disapproves or forbids.' This is so because the test of the master's responsibility for the acts of his servant is, not whether such act was done in accordance with the instruction of the master to the servant, but whether it was done in the prosecution and in the scope of the master's business.' Accord: Philadelphia & Reading R. Co. v. Derby, 14 How. 468, 55 U.S. 468, 486, 14 L.Ed. 502 (1852); Crane Auto Parts, etc., Inc. v. Patterson, 90 Ga.App. 257, 260, 82 S.E.2d 666; Huddle House, Inc. v. Burke, 133 Ga.App. 643(1), 211 S.E.2d 903, cert. denied.

In the instant case the defendants' employees were acting within the scope of their employment and in the prosecution of their master's business. They were plumbers. Their master's business was installation and repair of plumbing, and they were engaged in plumbing repair work at the time of the fire in question. The fact they were not permitted to make repairs without prior approval and supervision is of no consequence as to their negligence. As we held in Evans v. Caldwell, 52 Ga.App. 475, 479, 184 S.E. 440, 443, quoting Philadelphia & Reading R. Co. v. Derby, 14 How. 468, 55 U.S. 468, 487, 14 L.Ed. 502, supra: '(W)e find no case which asserts the doctrine that a master is not liable for the acts of a servant in his employment, when the particular act causing the injury was done in disregard of general orders or special command of the master. Such a qualification of the maxim of respondeat superior would in a measure nullify it.'

After verdict the evidence is construed in its light most favorable to the prevailing party, and every presumption and inference is in favor of the verdict. Mathis-Akins Concrete, etc. Co. v. Tucker, 127 Ga.App. 699, 700(1), 194 S.E.2d 604. And, if there is any evidence to support it, this court will not disturb it. Pinkerton & Laws Co. v. Atlantis Realty Co., 128 Ga.App. 662, 665, 197 S.E.2d 749. The findings of fact and conclusion of law as to liability of the defendants are amply supported by the evidence of record.

2. Defendant's allegation that plaintiffs' failure to offer evidence as to reasonableness of motel expenses, requires disapproval of that amount, is without merit. Defendant could have cross-examined the plaintiffs as to such expenses if he seriously contested their necessity or their reasonableness. A failure to object to admission of this evidence on the basis of 'no showing of reasonableness' is a waiver of such objection. Johnson v. Rooks, 116 Ga.App. 394, 398, 157 S.E.2d 527. Accord: Lamon v. Perry, 33 Ga.App. 248, 250(1), 125 S.E. 907. It is within the province of the fact finder to consider the evidence and to determine whether the amount was reasonable. Georgia R., etc., Co. v. Tompkins, 138 Ga. 596, 603, 75 S.E. 664; Limbert v. Bishop, 96 Ga.App. 652, 655-656(5), 101 S.E.2d 148; Smith v. Davis, 121 Ga.App. 704, 708(5), 175 S.E.2d 28; Neloms v. Carmichael, 125 Ga.App. 331, 332, 187 S.E.2d 555.

3. Enumerations of error 13 through 44 deal with the measure of damages awarded the plaintiffs. Defendant contends plaintiffs' opinion as to the value of their property was not competent as they 'gave no reason whatsoever for the values . . . assigned to the various items of personal property, except the cost price.' We agree.

Consistency was not the forte of plaintiffs' testimony as to value. Evidence was introduced as to the purchase price of some items and the purchase date of other items, but not the purchase price and date of all items. There was testimony as to market value of most items before and after the fire, but not all items. Salvage value or the lack thereof was given on some but not all items. Without summarizing each of the five plaintiffs' testimony as to every item damaged or destroyed by the fire, we find that generally they testified to acquisition cost, a few of the acquisition dates, 'reasonable market value' of most items immediately before and after the fire, and salvage value-if any, of the items after the fire. Such evidence fails to satisfy the test enumerated by this court in Hoard v. Wiley, 113 Ga.App. 328, 329(1b), 147 S.E.2d 782, 783 that: 'An owner of property may not testify as to his opinion of the value of the property in a single or gross amount without 'giving his reasons therefor' or else showing that he has had 'an opportunity for forming a...