Opinion
42315.
ARGUED SEPTEMBER 9, 1966.
DECIDED OCTOBER 27, 1966. REHEARING DENIED NOVEMBER 10, 1966.
Action for damages. Glynn Superior Court. Before Judge Hicks, Emeritus.
Cowart, Sapp, Alaimo Gale, Neal G. Gale, for appellant.
Bennet, Gilbert, Gilbert Whittle, Wallace E. Harrell, Lloyd E. Grimes, Jerrell T. Hendrix, Albert Fendig, Jr., for appellees.
In this damage action, after all of plaintiff's amendments to the petition had been filed, the defendant C. S. Tait, d/b/a Tait's Auto Service, renewed his general demurrer which the judge of the trial court overruled. The case was tried by a judge emeritus who directed a verdict in favor of the defendant, C. S. Tait, from which the plaintiff appeals. As will be seen from the allegations in the petition, the overruling of the general demurrer constituted a ruling that the petition stated a cause of action and in the absence of a cross or direct appeal from the ruling on the renewed general demurrer such ruling became the law of the case. The evidence was conflicting and authorized a verdict either way as to C. S. Tait; therefore, the court erred in directing the verdict for C. S. Tait. C. S. Realty Co. v. Perry Printing Process Co., 111 Ga. App. 671 ( 143 S.E.2d 29).
Judgment reversed. Frankum and Pannell, JJ., concur.
ARGUED SEPTEMBER 9, 1966 — DECIDED OCTOBER 27, 1966 — REHEARING DENIED NOVEMBER 10, 1966.
James Wiley Sapp, Jr., instituted an action in the Superior Court of Glynn County against the defendants, W. M. Smith, C. S. Tait. d/b/a Tait's Auto Service, E. R. Stanford, d/b/a City Market, and Roy A. Stepp, for damages sustained as a result of a gunshot wound received upon the premises of the place of business of the defendant C. S. Tait, d/b/a Tait's Auto Service. The general demurrer of the defendant E. R. Stanford, d/b/a City Market was sustained by the trial court and no appeal taken therefrom.
After plaintiff's amendments the renewed general demurrers of the remaining defendants were overruled. On the trial of the case the court directed a verdict in favor of C. S. Tait, d/b/a Tait's Auto Service, from which direction of the verdict plaintiff appeals. The petition as amended alleges in part: "1. That W. M. Smith, hereinafter called defendant is a resident of Glynn County, Georgia. 2. That C. S. Tait, d/b/a Tait's Auto Service, hereinafter called defendant is a resident of Glynn County, Georgia. 3. That Roy A. Stepp, hereinafter called defendant is a resident of Glynn County, Georgia. 4. That E. R. Stanford, d/b/a City Market, hereinafter called defendant is a resident of Glynn County, Georgia. 5. Plaintiff shows that on or about July 26, 1964, he was a passenger in a truck driven by defendant, W. M. Smith, and that the said W. M. Smith drove said truck to the place of business of the defendant Tait, located on Glynn Avenue in the City of Brunswick, Glynn County, Georgia. 6. Plaintiff shows that when the acts performed in Paragraph 5 above occurred, W. M. Smith was employed by the defendant E. R. Stanford, d/b/a City Market and was acting within the scope of the business of his employer and as his agent. Plaintiff further shows that the defendant W. M. Smith was his supervisor acting as vice-principal to the defendant, E. R. Stanford in that the said Smith had full power and authority from Stanford to authorize plaintiff to work for the said Stanford having done so on said date. 7. Plaintiff shows that the defendant W. M. Smith had in the cab of the truck a .22 calibre revolver which was encased in a holster and belt and that Roy A. Stepp, an employee and agent of the defendant Tait asked the defendant Smith if he could examine the weapon and asked the said Smith if it was loaded to which question the defendant Smith replied, `No.' 8. Plaintiff shows that the said Roy A. Stepp was in charge of the business known as Tait's Auto Service and was operating the same at said time and acting within the scope of his employment as agent and for the benefit of the defendant, C. S. Tait. 9. Plaintiff shows that the defendant Roy A. Stepp stated that he had some ammunition for the pistol and would like to load it and try it out. The defendant Smith gave his consent to this. 10. Plaintiff shows that Roy A. Stepp then produced the ammunition and loaded the pistol. 11. Plaintiff shows that he then went into the automobile display room portion of the premises of the defendant C. S. Tait, d/b/a Tait's Auto Service to examine the new automobiles located there. 12. Plaintiff shows that as he was returning from the automobile display room into the service station portion of the premises, the defendant Smith was talking on the telephone located immediately inside the entrance to another employee of the defendant E. R. Stanford, d/b/a City Market about matters concerning the business of their employer and was acting as his agent within the scope of his employment and was holding said pistol and the same discharged striking the plaintiff in the face causing serious bodily injuries thereby as hereinafter enumerated. 13. Plaintiff shows that the defendant W. M. Smith, was negligent in the following manner: (a) In frivolously and carelessly handling a loaded weapon. (b) In willfully and wantonly in a negligent and careless manner handling a loaded weapon causing the same to discharge and strike the plaintiff. (c) In failing to take any care for the safety of the plaintiff. 14. Plaintiff shows that the negligence of the defendant W. M. Smith is imputable to E. R. Stanford, d/b/a City Market due to the fact that he was acting within the scope of his employment and as his agent. (a) Plaintiff shows that the defendant, E. R. Stanford, d/b/a City Market is liable for the acts of W. M. Smith because the said W. M. Smith was acting as his vice-principal at the time the aforesaid acts of negligence occurred. 15. Plaintiff shows that at the time he was shot, the premises of the defendant, C. S. Tait, d/b/a Tait's Auto Service was open to the public and he was an invitee therein. (a) Plaintiff shows that the automobiles are placed on display in a lighted showroom upon the premises of the defendant C. S. Tait and that the general public is invitee to enter said showroom to view them and that the plaintiff was responding to said invitation when he entered said showroom and was injured therein. 16. Plaintiff shows that the defendant, Roy A. Stepp, was negligent in the following manner: (a) In that he knew of the plaintiff's presence upon the premises within range of the dangerous instrumentality he had created and that he did not take proper precautions for his safety as an invitee upon the premises, thereby causing him to receive bodily injury. (b) In providing the ammunition for and loading the weapon of the defendant W. M. Smith. (c) In creating a wanton and careless situation upon the premises of its place of business without any care for the safety of the plaintiff. (d) In returning said weapon to the defendant W. M. Smith in a loaded condition thus creating the probability of its being negligently discharged. (e) In willfully, wantonly and knowingly creating a situation upon the premises by giving a loaded revolver or pistol to the defendant, W. M. Smith, without determining that the said Smith understood that said revolver or pistol was loaded and likely to be discharged causing injury to the plaintiff. 17. Plaintiff shows that the defendant C. S. Tait was negligent through the acts of his employee, Roy A. Stepp since the said Stepp was acting as his agent and within the scope of his employment when his acts of negligence were performed."