Summary
In Prince v. Brickell, 87 Ga. App. 697, supra, one who was employed as a doorman at a night club and gaming house with instructions to admit only persons who had permission to enter, shot plaintiff's husband when he attempted to enter without permission.
Summary of this case from American Oil Co. v. McCluskeyOpinion
34422.
DECIDED FEBRUARY 28, 1953.
Action for damages; from Richmond Superior Court — Judge Kennedy. October 16, 1952.
Cumming, Nixon Eve, Fulcher, Fulcher Hagler, for plaintiff in error.
Mixon Chambers, contra.
1. The motion to dismiss the writ of error is without merit.
2. 3. The allegations of the petition were sufficient to show that the defendant's servant or agent was acting in the scope of his employment and in the prosecution of the defendant's business when he committed the wrongful acts complained of, and the court did not err in overruling the general demurrer to the petition.
DECIDED FEBRUARY 28, 1953.
Claudean S. Brickell sued George William Prince for damages resulting from the homicide of her husband by the defendant's alleged agent. The plaintiff made substantially the following allegations in her petition as amended: Lewis D. Brickell died at about 4 a. m. on May 3, 1952, and the plaintiff is his widow. On this date, the defendant owned and operated for profit a combination restaurant, beer parlor, liquor store, dance hall, night club, and gaming house in the City of Augusta, and he invited the public to trade there and to participate in the entertainment offered. The defendant then had in his employment a servant and agent, Joseph Oliver Prince, whom the defendant had placed in charge of the gaming house being operated in the rear of the restaurant, in conjunction with it, and as an added business attraction to the guests in the remainder of the defendant's establishment. The defendant had employed J. O. Prince to guard the door leading from the front part of the restaurant into the gaming room, to protect the gaming room against intrusion by persons attempting to enter without his permission, to admit to the gaming room only those whom, in his judgment, it would be profitable for the defendant to admit, to reject all others, and to cash checks for the defendant's customers. The plaintiff's husband, having been invited some three hours previously by one of the defendant's agents and servants, by special printed card, to participate in the activities being carried on in the defendant's gaming room, entered the defendant's restaurant at about 3:45 a. m., purchased a cup of coffee, then walked back to the door of the gaming room to participate in the activities there, and attempted to enter the gaming room by opening the door thereto. J. O. Prince, acting within the scope of his employment and in the performance of his duties, refused to admit the plaintiff's husband and commanded him to leave. When the plaintiff's husband hesitated, J. O. Prince drew a pistol from his pocket and shot the plaintiff's husband wilfully, wantonly, unlawfully and without just cause, thus inflicting wounds from which the plaintiff's husband died a few minutes later. The defendant furnished J. O. Prince with a pistol to be kept and used by him in his employment and in the discharge of his duties as guardian and custodian of the gaming room, and this was the weapon used by J. O. Prince to prevent the plaintiff's husband from entering the gaming room. J. O. Prince had authority to act for the defendant in ejecting from the defendant's establishment any person whom he saw fit to remove therefrom. There were then other employees inside the defendant's place who could have assisted J. O. Prince in removing the plaintiff's husband, and there was also a police officer of the City of Augusta within a few yards of the defendant's place who could have been summoned by J. O. Prince. The plaintiff's husband was unarmed and could have been easily ejected without injury by the defendant's eight agents and servants then present, besides waitresses. The death of the plaintiff's husband was the sole and proximate result of the wilful, wanton, and malicious conduct of J. O. Prince in needlessly shooting him. The defendant has ratified and confirmed the acts of J. O. Prince as his own by signing appearance bonds for J. O. Prince in connection with certain criminal charges arising from the alleged occurrences, by employing counsel to defend J. O. Prince in these criminal cases, and by continuing to employ J. O. Prince from May 7, 1952, until June 26, 1952. The suit was brought for the full value of the life of the plaintiff's husband, which was alleged to be $100,000.
The defendant's general and special demurrers to the petition were overruled, and the defendant excepted to that judgment.
1. A timely writ of error lies to a judgment overruling a general demurrer to the plaintiff's petition, although the case has proceeded to trial and the final judgment rendered therein has not been excepted to. Where the plaintiff proceeds to trial under such circumstances, he does so at his peril; that is, he takes the risk of having the judgment overruling the demurrer reversed, in which event the trial of the case would be a nullity. Code, § 6-701; Elrod v. Hulett, 62 Ga. App. 659, 661 ( 9 S.E.2d 279); Lowe v. Burke, 79 Ga. 164 ( 3 S.E. 449); Jones v. Hurst, 91 Ga. 338 ( 17 S.E. 635). The motion to dismiss the writ of error is without merit.
2. The defendant, G. W. Prince, who is the plaintiff in error here, has neither argued nor insisted upon his exceptions to the overruling of his special demurrers; and therefore these exceptions are treated as abandoned. He contends that the petition does not show that the alleged act of J. O. Prince, in shooting the plaintiff's husband, was done in the scope of his employment or in the prosecution of the defendant's business; that the allegations are insufficient to show a ratification by the defendant of his employee's conduct; and thus that the general demurrer should have been sustained.
It is alleged in the petition that the defendant was operating an establishment where beer, liquor, and food were sold, with dancing and gambling as additional attractions. The public was invited, except that the only persons admitted to the gambling room were those whose activities therein would be profitable to the defendant, and J. O. Prince, the armed keeper of the door to the gaming room, was apparently the final arbiter of this qualification. It is alleged that the plaintiff's husband had been invited to come to the gaming room by another of the defendant's employees some three hours before he was shot and killed; he had indeed been given a printed card, but whether this was for admission, invitation, or mere advertisement, or whether the card was shown to J. O. Prince does not appear.
It is further alleged that J. O. Prince had been placed in charge of the defendant's gaming room. He was to guard the door to it, to protect the room from intrusion by those who had not obtained his permission to enter, and to eject such persons as he saw fit to remove from the defendant's establishment. Permission to enter was denied to the plaintiff's husband when he attempted to open the door to the gaming room at 3:45 a. m., and J. O. Prince also commanded him to leave. The plaintiff's husband hesitated, and J. O. Prince shot him, inflicting wounds from which he died a few minutes later. In short, the petition shows that the defendant gave J. O. Prince discretion to determine who should enter the gaming room or be turned away from it, and a pistol to enforce his decisions.
Whether J. O. Prince was an agent or a servant makes no difference in applying the doctrine of respondeat superior; if his wrongful acts were in the prosecution of the defendant's business and within the scope of the employment, then the defendant is liable for such tortious conduct of his servant or agent, as the case may be. Planters Cotton-Oil Co. v. Baker, 181 Ga. 161 ( 181 S.E. 671); Code, §§ 4-311, 4-312, 105-108. The specific allegations of the petition do not plainly and distinctly show that the conduct of J. O. Prince was wholly personal to himself and motivated solely by his own anger, resentment, or vindictiveness, so as to negative the general allegation that such conduct was in the prosecution of the defendant's business, as was the case in Daniel v. Excelsior Auto Co., 31 Ga. App. 621 ( 121 S.E. 692), Atlanta Baseball Co. v. Lawrence, 38 Ga. App. 497 ( 144 S.E. 351), Atlanta Coca-Cola Bottling Co. v. Brown, 46 Ga. App. 451 ( 167 S.E. 776), Plumer v. Southern Bell Telephone c. Co., 58 Ga. App. 622 ( 199 S.E. 353), Broome v. Primrose Tapestry Mills, 59 Ga. App. 70 ( 200 S.E. 506), and Falls v. Jacobs Pharmacy Co., 71 Ga. App. 547 ( 31 S.E.2d 426), which are cited and relied upon by the defendant. See and compare Central of Ga. Ry. Co. v. Brown, 113 Ga. 414, 416 ( 38 S.E. 989, 84 Am. St. R. 250); Frazier v. Southern Ry. Co., 200 Ga. 590 ( 37 S.E.2d, 774). Nor does it matter that the killing of the plaintiff's husband was not beneficial to the defendant. Savannah Electric Co. v. Wheeler, 128 Ga. 550, 554 ( 58 S.E. 38). And, "If the criminal act of the servant was done within the range of his employment and for the purpose of accomplishing the authorized business of the master, the latter is liable." Southern Ry. Co. v. James, 118 Ga. 340, 344 ( 45 S.E. 303, 63 L.R.A. 257).
In Ford v. Mitchell, 50 Ga. App. 617 ( 179 S.E. 215), the petition, alleging that the plaintiff was shot by the defendant's armed woodsman, employed to keep persons off the defendant's land, failed to state a case because it did not appear that the plaintiff was being kept off the defendant's land when he was shot. In the present case, however, it appears that the plaintiff's husband was being kept out of the gaming room and put off the defendant's premises by J. O. Prince, which was exactly what J. O. Prince was employed to do. Compare Estridge v. Hanna, 54 Ga. App. 817 ( 189 S.E. 364), where the petition, alleging that the defendant's gamekeeper shot the plaintiff who was carrying a turkey on premises adjoining the defendant's, was held to set out a cause of action.
3. The petition here set out a cause of action against the defendant for the wrongful acts of J. O. Prince, his servant or agent, and the court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Felton and Worrill, JJ., concur.