55 Ga. App. 633 | Ga. Ct. App. | 1937
Lead Opinion
Smith brought suit against the American Surety Company, alleging that the company was surety on the bond of Cook, sheriff of Chattooga County, Georgia; that, on a day before the bringing of the suit, the plaintiff, in company with
The defendant demurred to the petition, on the grounds (1) that there can be no recovery of “ smart” money as against the sureties on the bond of the sheriff for the acts and conduct of his deputy, (2) that the sheriff, the principal in this bond, was a resident of Chattooga County, and the suit against him could not be brought in Floyd County, according to the Code, § 56-601. This identical question was decided adversely to the defendant in American Surety Co. v. Smallon, 54 Ga. App. 45 (186 S. E. 892). See also Carlan v. Fidelity Deposit Co., 55 Ga. App. 271 (supra).
In the instant case the judge, in stating to the jury the contentions of the parties, in effect read the petition of the plaintiff, stating that this was what the plaintiff contended, and then immediately charged: “To the petition of the plaintiff the defendant files its answer in which it denies all liability to the plaintiff, and says for want of sufficient information it is unable to either admit or deny the allegations that are the subject for proof in this case. The defendant denies it has injured and damaged the plaintiff in the amount sued for, or in any other sum whatever. The court states to you the contentions of the plaintiff and the answer of the defendant, in order that you may know what case you are trying. You wiil have the petition of the plaintiff and the answer of the defendant out in your jury-room with you; and if you see' fit to do so, you may read either or both of them, and in that way see just what the plaintiff contends and what the defendant contends, and keep the issues clearly in your mind. I charge you that wherever the defendant admits anything in its answer that the plaintiff alleges in his petition, you will accept that as proved. The burden is upon the plaintiff to establish each and every material allegation in his petition by a preponderance of the testimony. . . It is admitted by the defendant that on the date alleged in the petition Thomas A. Cook was sheriff of Chattooga
We do not think the effect of the charge above quoted was to misstate the plaintiff’s contention by saying to the jury in effect that certain paragraphs of the petition were not expressly admitted when they were admitted. Nor do we think the charge to the jury was in effect that the defendant had failed expressly to deny any particular paragraph of the petition; nor was the effect of the judge’s charge to state that the defendant was unable, for want of sufficient information, to deny any and every fact that was the subject of proof (that is, any and every fact that should have been proved in order to recover); nor do we think that the charge gives in excessive detail the contentions of the plaintiff, but fails to set forth or give the contentions of the defendant as set forth in its answer. While the court should have stated more explicitly which paragraphs or allegations were thus intended to be admitted and which were denied, and which required proof by the plaintiff by reason of the form of the answer to certain paragraphs, which said, “for want of sufficient information this defendant is unable to either admit or deny” the allegations of the particular paragraph referred to, yet we do not think this part of the charge could have misled the jury to the prejudice of the defendant. While a part of the instruction above quoted is inaptly expressed, yet, when considered in connection with its context and in the light of the charge as a whole, we think the charge conveys the idea that the allegations of fact in the petition which are expressly admitted in the answer are not in issue and are to be taken by the jury as true, and that all allegations of fact contained in the petition which are denied in the answer are put in issue, and, even though not denied, that paragraphs of the plaintiff’s petition which the defendant says in his answer he is unable to admit or deny, for want of sufficient information, are also put in issue. The court elsewhere in effect charged: The plaintiff’s petition and the defendant’s answer you will have before you in your deliberation, and you are at liberty to refer to and read them yourselves ; and from the material issues of this case, which are formed by the said pleadings of the said respective parties, you will decide in favor of the party with whom you shall find to be a preponderance of evidence on said issues. Georgia Southern &
The court charged the jury, in part, as follows: “(I charge you it is a violation of law, and for any person who shall be guilty of the offense of shooting at another, except in his own defense and under circumstances of justification according to the criminal law of Georgia, with a gun, pistol, or other instrument of like kind, shall be punished by penitentiary confinement.) [I charge you that a deputy sheriff is conclusively presumed to know the law; and if you find from the evidence in this case that these deputy sheriffs, or any of them, shot at the plaintiff wilfully and wantonly, or wilfully and wantonly shot at the car or automobile in which the plaintiff was riding, and while the plaintiff and those who were in the car or automobile with him was making their escape, it would be an act of bad faith on the part of the deputy sheriffs.] If you find these to be the facts of the evidence in this case, taking all the circumstances together, the defendant would be liable in damages in an amount which shall not be excessive or oppressive. On the other hand, I charge you that there can be no recovery of damages by the plaintiff of the defendant in this ease, unless you find from the evidence that the shots fired by the deputy sheriffs named in the petition were actually fired at the automobile in which the plaintiff wa,s riding, or at the plaintiff. If you find that they did not fire at the automobile or at the plaintiff, you will return a verdict for the defendant. If these deputy sheriffs, from the evidence, fired their pistols into the air, the ground or an adjacent bank, and not in the direction of the plaintiff or the automobile in which he was riding, the plaintiff would not be entitled to recover, and you will return a verdict for the defendant.” (Parentheses and brackets ours.)
The criticism of the charge, that it authorized the jury to return damage for fright, unaccompanied by physical injury, and that this is contrary to the established law of this State, is not meritorious; for the reason that the court did charge the jury “that there can be no recovery for fright unaccompanied by some assault upon the person of the plaintiff.” The court charged in accordance with the rule laid down in Copeland v. Dunehoo, supra.
The evidence in its most favorable light to the plaintiff tended to show that three deputy sheriffs undertook unlawfully to stop the car in which the plaintiff was riding, and when the plaintiff fled the deputies shot at him or at the car, one of the shots hitting the car. The plaintiff, still fleeing, was pursued by the deputy sheriffs until he arrived at the house of a friend in the neighborhood, and the pursuing deputies’ “car drove up and stopped in just a minute,” and then and there, in a conversation, one of the deputies made a statement which was in the nature of an admission. The defendant objected to this statement, on the ground that the suit was against the surety on the sheriff’s bond, and that the statement was made by one of his deputies who “was not a party to this case, not even a principal upon the bond sued on, and that the evidence was hearsay so far as this defendant was concerned.” This objection was not meritorious, and the judge did not err in admitting the evidence.
The Code, § 24-3318, says: “No consent between attorneys or parties will be enforced by the court, unless it be in writing and signed by the parties to the consent, where such consent or agreement is denied by the opposite party.” The agreement of counsel in this ease was not signed by the parties, and there was a misunderstanding between counsel as to some of its terms and conditions; the defendant’s counsel claiming it was agreed that certain depositions of one of Iris witnesses, Ed. Alexander, taken in a companion case, would be used in the instant case, and that he wrote to the plaintiff’s counsel a letter as follows: “Merely
Judgment affirmed.
Rehearing
ON MOTION ROE REHEARING.
The plaintiff in error strenuously contends that we overlooked the principles announced in First National Bank of Rome v. Langston, 44 Ga. App. 465 (161 S. E. 637), where this court said: “The defendant was entitled to have the case tried upon the defense which it elected to assert, and should not have been placed in the attitude of making a further issue as to the agency of the persons alleged to have caused the injury, when this fact was admitted in the answer and there was no contention whatever concerning it. The fact that the defendant was thus placed in a false and losing position as to one issue tended to discredit its position as to other issues, and might have been the deciding factor in the deliberations of the jury.” The cited case is distinguishable from the instant case. In the former case the charge misstated the issues raised by the answer (the pleading), in that the answer showed the defendant admitted the agency, whereas the judge’s charge stated that the defendant denied the agency. In the instant case the petition alleged that certain officers were deputy sheriffs. The answer denied this, and on the trial, at the conclusion of the reading of the pleadings, the defendant admitted in open court that the officers were deputy sheriffs as alleged. Thus we have the answer denying this allegation, and the admission (not in pleading) in open court admitting it. Whatever may have been the technically correct thing for the judge to have charged, it is not reversible error for him to have failed in his charge to reconcile this denial in the defendant’s answer and its admission (not made in his pleading). “Instructions of the court to the jury should be confined to the issues made by the pleadings in the case.” Cordele Sash &c. Co. v. Wilson Lumber Co., 129 Ga. 290 (2) (58 S. E. 860). “Under the 21st rule of court, pleadings can not be dispensed with even by express consent of the parties (Civil Code, § 5652), and certainly they are not to be treated as having been dispensed with by mere implication from what occurs during the progress of the trial.” Martin v. Nichols, 127 Ga. 705, 709 (56 S. E. 995). “Where in a civil case the judge, in stating the contentions of the parties, fully and
The pleadings are the chart and compass by which the judge is to guide the case. The defendant can not give the judge a chart to follow, and when the judge follows that chart reverse him for so doing. If the evidence or an admission in the nature of evidence is introduced which contradicts the answer, the defendant may amend his answer so as to follow the evidence, and then it would be- the duty of the judge to follow the amended answer as the new and corrected chart, and if he failed in his charge to do so it would be at his peril. Moreover, in this case the judge, in his charge, stated in effect that the plaintiff had made an allegation that these persons were deputy sheriffs, and that the defendant had denied it in the answer; and then, later in the charge, he stated that the defendant admitted that these persons were deputy sheriffs. The judge in his charge stated what the pleadings said, and then stated what the admission (not in the pleading) was. He made no misstatement of the pleading, nor did he make any misstatement as to the admission. We do not think the principle announced in the First National Bank of Rome case, supra, applies to the case sub judice.
In the motion for rehearing the plaintiff 'in error states that it “recognizes the fact that the admission of the sheriff, the principal upon this bond, would have been admissible under the decisions of this court in the cases of Stephens v. Crawford, 1 Ga. 574 [44 Am. D. 680], Dobbs v. Justices, 17 Ga. 625, and Chicago Portrait Co. v. O’Neill, 6 Ga. App. 425 [65 S. E. 161];” but “movant insists and contends that these decisions have no application to a deputy who is not in privity with the surety upon the bond of the sheriff, and that an admission of such deputy would not be admissible against such surety alone, while possibly admis
Rehearing denied.