Evelyn McClellan Davis brought suit both individually and as administratrix of the estate of Robert McClellan against Clifford Jones, d/b/a/ Dairy Queen and Kwik Shop, and Carey Jones for the wrongful death of her son, Robert. The jury returned a verdict in favor of Davis for the full value of Robert’s life, medical and funeral expenses, and exemplary damages. The trial court denied the motions for new trial made by Clifford Jones and Carey Jones. Their individual appeals have been consolidated in this opinion.
Appellant Carey Jones (“Carey”) was employed as a store clerk at the convenience store owned by his father, appellant Clifford Jones (“Clifford”), at the time appellee’s deceased entered the store. The evidence at trial differed as to the events that followed; however, the jury was authorized to believe that as the result of an argument over change for a $100 bill appellee’s deceased had tendered as payment for a purchase, Carey shot appellee’s deceased four times in the chest. Appellee’s deceased died shortly thereafter.
1. Both appellants contend the trial court erred by instructing the jury on the doctrine of res ipsa loquitur. Proper objection was made to the charge and in response, the trial court agreed the charge was not applicable but that counsel for Clifford had argued it continually, even in closing. The trial judge then stated “[i]t’s for that reason that I gave the charge and the Court will not back off of that.” In its order on appellants’ motions for new trial, the trial court acknowledged it had misunderstood counsel’s references to “respondeat superior” to be references to “res ipsa loquitur.” The trial court found any error in the charge to be harmless, though, since res ipsa loquitur when applied authorizes only an inference of ordinary negligence and the jury verdict awarding appellee exemplary damages necessarily embraced a jury finding that the shooting was the result of either a wilful and intentional act or, alternatively, a needless and wanton act.
Initially, we do not agree with appellee’s argument that appellants waived any objection to the res ipsa loquitur charge. Appellants’ objection to this charge fully apprised the trial court of the error com
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mitted thereby affording the trial judge an opportunity to correct the error. See generally
Continental Cas. Co. v. Union Camp Corp.,
The law in Georgia is clear that it is error to charge the doctrine of res ipsa loquitur where, as here, the cause of the incident is subject to proof by direct evidence since it “is a doctrine of necessity to be applied, where otherwise appropriate, in cases where there is no evidence of consequence showing negligence on the part of the defendant.”
Southern Bell Tel. &c. Co. v. LaRoche,
In support of the argument that the charge on res ipsa loquitur was harmless error, appellee reiterates the trial court’s ground for denying appellants’ motions for new trial, namely, that the award of exemplary damages in favor of appellee established that any error in charging res ipsa loquitur had no effect on the jury. Although the trial court’s charge contained an instruction discussing ordinary negligence, the res ipsa loquitur charge did not specify what type of negligence it encompassed. The “punitive” damages charge did not refer to negligence at all, stating merely that “[p]unitive, that is, aggravated damages, may be authorized when the circumstances of the wrong are such as to show an entire want of care and indifference to consequences.” Thus, it is apparent neither the “punitive” damages charge nor any other charge given by the trial court would have clarified to the jury the distinction between the ordinary negligence of res ipsa loquitur and the wilful or wanton negligence necessary for exemplary damages. Mindful of the fact that charges are deemed to be given to jurors of ordinary capacity and understanding, we cannot in view of the closeness of the issues in this case consider the error
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harmless. See
Valdosta Housing Auth. v. Finnessee,
2. (a) We find no error in the trial court’s admission of two police reports regarding the shooting incident. “Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. [Cits.]”
Gordon v. Gordon,
(b) Clifford contends the trial court erred by charging the jury on various principal-agent theories of law. We agree with Clifford that to the extent certain principal-agent theories of law are applicable solely to contract law, they should not be charged to the jury upon retrial of this case. See generally
Seibers v. Morris,
3. Clifford enumerates as error the trial court’s charge on premises liability, taken from
High Co. v. Holler,
Judgments reversed.