Cooper v. Ricketts

217 S.E.2d 503, 135 Ga. App. 346, 1975 Ga. App. LEXIS 1670

• Court: Court of Appeals of Georgia
• Decided: July 8, 1975
• Docket: 50455
• Status: Published

Opinions

Stolz, Judge.

The plaintiff appeals from the grant of the defendant’s motion for summary judgment.

1. The plaintiffs first five enumerations of error allege the violation of various constitutional rights. The record does not reveal that these attacks were made in the trial court, hence they cannot be considered when raised for the first time on appeal. O’Kelley v. Skinner, Wilson & Beals, 132 Ga. App. 792 (3) (209 SE2d 242) and cit.

2. The plaintiffs sixth enumeration of error complains that the trial judge erred in not allowing the plaintiff to enter sworn affidavits in his case to further prove his case to the court. A review of the record reveals that the trial judge did sustain the defendant’s motion to strike two affidavits which were attached to the plaintiffs complaint as Exhibits B and C, respectively. The plaintiff did not offer any evidence in opposition to the defendant’s motion for summary judgment, including the aforesaid affidavits. The affidavits of possible witnesses for plaintiff were not properly a part of the complaint and were correctly stricken by the trial judge.

3. The defendant warden swore by affidavit that at no time had he "had personal contact with, possession of, or personal control over any of the personal belongings” which are the subject of the plaintiff prisoner’s .present trover action, and that neither he nor any employee of the Georgia Diagnostic and Classification Center had damaged or caused the loss of, or permitted damage or loss to the plaintiffs personal property. This unopposed affidavit established that he had never had possession of any property belonging to the plaintiff. The transcript reveals the following testimony by plaintiff: "Q. You have no personal knowledge that hetookanything?A. No, sir. Q. You don’t have any evidence from anybody else. that, he took anything? A. No, sir.” Thus there appears to be contradiction of the facts set forth in the defendant’s affidavit." '[A]s a general rule, a public officer is not liable under the respondeat superior doctrine for acts or omissions of his subordinates.’ 67 CJS 423, Officers, § 128. See Mathis v. Nelson, 79 Ga. App. 639, 640 (3.) (54 SE2d 710).”Parris v. Slaton, 131 Ga. App. 92 (2) (205 SE2d 67). See also Peavy v. Chavers, 121 Ga. App. 354 (173 SE2d 749).

Submitted April 9, 1975 Decided July 8, 1975. Selmer L. Cooper, Jr., pro se. Arthur K. Bolton, Attorney General, Robert S. Stubbs, II, Executive Assistant Attorney General, G. Thomas Davis, Assistant Attorney General, Kirby G. Atkinson, for appellee.

Judgment affirmed.

Bell, C. J., Quillian, Clark and Marshall, JJ., concur. Webb, J., concurs in the judgment.. Deen, P. J., and Evans, J., dissent. Pannell, P. J., concurs in the result of the dissent.