Hunter v. A-1 Bonding Service, Inc.

• Decision Date: 20 September 1968
• Docket Number: Nos. 1,3,No. 43613,2,A-1,43613,s. 1
• Citation: 164 S.E.2d 246,118 Ga.App. 498
• Parties: Jane V. HUNTER v.BONDING SERVICE, INC
• Court: Georgia Court of Appeals

Page 246

164 S.E.2d 246

118 Ga.App. 498

Jane V. HUNTER v. A-1 BONDING SERVICE, INC.

No. 43613.

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

Sept. 20, 1968.

Rehearing Denied Oct. 11, 1968.

Certiorari Denied Nov. 7, 1968.

Syllabus by the Court

1. The motion to dismiss 'for failure to state a claim against the defendant upon which relief can be granted' need not be renewed after the allowance of an immaterial amendment to the complaint.

2. Under the 'notice pleading' substituted for 'issue pleading' by the Civil Practice Act the complaint here was sufficient to withstand a motion to dismiss.

This is an action by a widow against a Georgia corporation for damages for the wrongful homicide of her husband, allegedly committed by the defendant corporation through two of its named agents, employees and servants. Material allegations of the complaint as amended are that 'At all times named herein Garland L. Thompson and J. B. Bowers were agents, employees, and servants of defendant; the defendant committed the wrongful acts hereinafter set forth by and through its agents, employees, and servants, Thompson and Bowers; and the said Thompson and Bowers, as agents, employees, and servants of the defendant, acted in the scope of their employment and in the prosecution of the defendant's business in committing the wrongful acts hereinafter set forth * * * On March 30, 1967, said Thompson and Bowers went to the home of HERMAN CHARLES HUNTER, at 973 Hanover Street, Atlanta, Georgia, and engaged in an argument and dispute with said HERMAN CHARLES HUNTER; and thereafter left said home of HERMAN CHARLES HUNTER and armed themselves with weapons, and returned to said home of HERMAN CHARLES HUNTER for the purpose of killing him, and acted in concert, and there at the home of HERMAN CHARLES HUNTER the said Garland L. Thompson took the life of plaintiff's husband by shooting him with a pistol, resulting in his death. The proximate cause of the homicide of plaintiff's husband was the conduct of the defendant, acting by and through Garland L. Thompson and J. B. Bowers as its agents, employees and servants, while in the prosecution of its business and in the scope of employment.'

The court sustained a motion to dismiss on the ground that 'the complaint fails to state a claim against the defendant upon which relief can be granted,' and dismissed the action, from which judgment the plaintiff appeals.

Larry Cohran, Atlanta, Randall Evans, Jr., Thomson, for appellant.

Webb, Parker & Ferguson, Paul Webb, Jr., John Tye Ferguson, Turner Paschal, Atlanta, Smith, Gardner, Wiggins & Geer, Peter Zach Geer, Albany, for appellee.

EBERHARDT, Judge.

1. Although the complaint was amended after the motion to dismiss was made and urged, the amendment contained nothing in the way of allegations different from those already in the complaint or changing the nature of the claim presented. It is thus immaterial that there was no renewal of the motion after the amendment.

2. It is somewhat difficult for us to adjust our thinking relative to the requirements as to pleadings under the Civil Practice Act, simply because of the deep impressions made by many years of experience under the Code pleading. But there is a difference, and we think it appears here.

There can be no question that prior to the effective date of the Civil Practice Act Judge Felton's conclusion that the motion to dismiss was properly sustained would have been correct. Ford Motor Company v. Williams, 219 Ga. 505, 134 S.E.2d 32. But under our ruling in Harper v. DeFreitas, 117 Ga.App. 236(1), 160 S.E.2d 260 it seems to us that the petition was sufficient to withstand the assault of the motion.

As was pointed out in the recent case of Byrd v. Ford Motor Co., 118 Ga.App. 333, 163 S.E.2d 327, the Civil Practice Act does away with 'issue pleading' and substitutes 'notice pleading.' Consequently, if the complaint can be said to give notice of any claim which the plaintiff may have against the defendant that could be sustained by proper proof it should not be dismissed. Issues are made and pointed up by discovery, on pre-trial and in the pre-trial order, on motions for summary judgment, or other available techniques, and and by the evidence itself, unless in instances when some matter is required to be specially pleaded. See Code Ann. § 81A-109. 'If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. * * * Under the old practice the pleadings not only served the function of giving notice of the claim asserted, but they also carried the burden of formulating the issues and to a large extent of advising the adverse party of the facts involved. Now the deposition and discovery procedure (under §§ 81A-126, 81A-137) and the pretrial conference (under § 81A-116) afford a much more efficient method of getting at the facts than pleadings ever offered, and they also bear much of the burden of making up the issues, so that the real office which the pleadings continue to serve is that of giving notice.' 2A Moore's Federal Practice, § 8.13, p. 1703. And compare Reynolds v. Reynolds, 217 Ga. 234, 246, 123 S.E.2d 115.

Whether the conduct of the defendant's servants was beyond the scope of their authority or was an independent personal matter on their part is a legitimate issue that may be raised. But since issues are not ordinarily raised by pleadings under the Civil Practice Act, that is to be done by some of the other available methods-not by a motion to dismiss, for the complaint does give the defendant notice of a claim against it because of the killing of the plaintiff's husband by the defendant's servants. A construction of the complaint resulting in a holding that the allegation that the servants, after going to plaintiff's home, left, armed themselves with pistols and returned for the purpose of killing plaintiff's husband discloses that the servants were then on a personal mission can be arrived at only by construing the petition against the pleader, instead of in his favor as the Act requires, and decides an issue which should be otherwise resolved.

This allegation does go far to indicate that the servants may have been on a personal mission, and on motion for summary judgment or upon a trial of the case it may stand sufficiently as an admission to justify an adverse verdict and judgment unless it has been withdrawn, or the evidence clearly demonstrates the contrary to be true.

However, it may appear upon a motion for summary judgment, or upon a trial of the case, from the evidence submitted, that the servants were still acting within their authority or upon instructions from the master when they returned to accomplish their mission. 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 upon 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. Cf. Knowles v. Gwynn, 224 Ga. 595, 163 S.E.2d 727, reversing Knowles v. Gwynn, 117 Ga.App. 686, 161 S.E.2d 380. Under our new system of pleading, that does not appear at this stage of the matter, though it may do so later on, as we have indicated.

The situation is somewhat analogous to a wrongful assault on a passenger by a railroad conductor, Mason v. Nashville, Chattanooga & St. Louis Ry. Co., 135 Ga. 741, 70 S.E. 225; Louisville & Nashville R. Co. v. Hudson, 10 Ga.App. 169, 73 S.E. 30, or upon a third party, Savannah Electric Co. v. Wheeler, 128 Ga. 550, 58 S.E. 38. However, we find no quarrel with the principle of law relative to the liability of the master for an unauthorized personal act of the servant, as cited in the dissents. What we deal with here is not the substantive law, but a procedural matter under the Civil Practice Act.

Judgment reversed.

BELL, P.J., JORDAN, P.J., and HALL and PANNELL, JJ., concur.

FELTON, C.J., and DEEN, QUILLIAN and WHITMAN, JJ., dissent.

FELTON, Chief Judge (dissenting).

1. If the majority view is correct, one is led to wonder why the Georgia CPA, fashioned after the Federal rules, provided in Code Ann. § 81A-112(b)(6) that a claim may be dismissed for 'failure to state a claim upon which relief can be granted.' If this petition after opportunity for amendment by the plaintiff and her failure to strike the allegation that the defendant's agents returned to the home of the deceased for the purpose of killing him, can be held not subject to a motion to dismiss, we may as well write off the provision of law providing for the dismissal of a claim. There has been so much attention paid to notice pleadings, discovery, pre-trial proceedings, etc., discussed in the majority opinion, that the facts and principles applicable to this case have been ignored as insignificant or inadvertently overlooked. The Supreme Court of the United States, in Conley v. Gibson, 355 U.S. 41, 45, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, construes the Federal law which we copied. It said: 'A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Let us apply that law to this case. The plaintiff on a trial, if one had been had, could not have proved a case, and cannot now, so long as her petition contains the allegation that the agents returned for the purpose of killing the deceased. It is wishful thinking to say that under this allegation the stated purpose could be turned into one amended in the mind of the thinker to mean 'returned to kill him if the circumstances require it in self-defense.' What the Supreme Court says is, 'if you cannot prove a case under the statement of your claim as you have stated it in your pleading, and have had an opportunity to...