Hunter v. A-1 Bonding Service, Inc. , 118 Ga. App. 498 ( 1968 )

Eberhardt, Judge.

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.

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, the sustaining of the motion to dismiss would have been correct. Ford Motor Co. v. Williams, 219 Ga. 505 (134 SE2d 32). But under our ruling in Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260), it seems to us that the petition was sufficient to withstand the assault of the motion.

As was pointed out in the recent ease of Byrd v. Ford Motor Co., 118 Ga. App. 333 (163 SE2d 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 by the evidence itself, unless in instances when some matter is required to be specially pleaded. See Code Ann. § 81 A-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 pre-trial 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 SE2d 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 on 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, reversing Knowles v. Gwynn, 117 Ga. App. 686 (161 SE2d 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, C. & St. L. R. Co., 135 Ga. 741 (70 SE 225, 33 LRA (NS) 280); Louisville &c. R. Co. v. Hudson, 10 Ga. App. 169 (73 SE 30)), or upon a third party (Savannah Electric Co. v. Wheeler, 128 Ga. 550 (58 SE 38, 10 LRA (NS) 1176)). 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., Hall and Pannell, JJ., concur. Felton, C. J., Deen, Quillian and Whitman, JJ., dissent.