O.C.G.A. § 51-11-1 (2019)

Annotations

Law reviews. - For article, the right to open and conclude the argument in tort cases, see 22 Ga. B. J. 297 (1960). JUDICIAL DECISIONS Law prior to amendment of 1888, permitted the defendant to file plea after the plaintiff had concluded the plaintiff ’s case. Ransone v. Christian, 56 Ga. 351 (1876). Defendant cannot file plea after plaintiff concluded case. Central of Ga. Ry. v. Morgan, 110 Ga. 168, 35 S.E. 345 (1900). For defendant to be entitled to open and conclude argument by virtue of plea of justification, the defendant must have admitted enough to make out prima facie case, for the plaintiff, and such admission must be made, and the right to open and conclude asserted, before the plaintiff submits any evidence in the case. Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939). When a suit for trespass on account of an unlawful levy on personalty, plea of justification admitted only that the alleged levy was made, without admitting that the property belonged to the plaintiff claimant, or was in the plaintiff ’s possession at the time of the levy, and no claim was filed, and the entry of levy did not show in whose possession the property was found, and the plea of justification was that the property belonged to the defendant in fi. fa., the defendant in the suit for damages (plaintiff in execution) would not be entitled to the opening and conclusion, since the plea failed to admit a prima facie tort, such as would authorize the recovery of any damages. Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939). Plea of justification must admit all acts charged. - Under this section, which places certain burdens and awards certain privileges to the defendant, the

plea, to meet the legal requirements, must in effect be one of confession and avoidance - that is, it must admit the commission of the acts charged in the petition as they are therein alleged; and a plea which only partially admits the commission of the acts charged is not a plea of justification, and does not entitle the defendant to the opening and conclusion of the argument. Smith v. Cole, 96 Ga. App. 300, 99 S.E.2d 907 (1957). Plea which admits act of detention and alleges that detention was authorized by law is plea of justification, and it is not necessary, in order that the plea entitle the defendant to all the privileges of one holding the affirmative of the issue, that it go further and admit the unlawfulness of the detention, since the plea of justification admits the act to be done and presents as the only issue for determination the justification or lack of justification for the act. Wyatt v. Baker, 45 Ga. App. 448, 165 S.E. 133 (1932). Insulting language as justification. - Opprobrious words which justify an assault and battery must be such as are uttered in the presence of the assaulting party and which, in their nature, are supposed to arouse the passions, and justify, under certain circumstances to be adjudged by the jury, instant and appropriate resentment, not disproportioned to the provocation. Robinson v. De Vaughn, 59 Ga. App. 37, 200 S.E. 213 (1938). When the words used are obviously not of an opprobrious nature, so as to justify an assault and battery, the court may determine, as a matter of law, that they are not. Robinson v. De Vaughn, 59 Ga. App. 37, 200 S.E. 213 (1938).

Authority to arrest. - The first clause of former Code 1933, § 105-1801 (see now O.C.G.A. § 51-11-1) permitted a defendant to plead in justification, such matters as the authority to arrest one without a warrant under former Code 1933, § 27-207 (see now O.C.G.A. § 17-4-20). McPherson v. Chandler, 137 Ga. 129, 72 S.E. 948 (1911). Police officer can prove the officer’s affirmative defense of privilege by showing that person arrested was sufficiently named in the warrant and was reasonably believed to be the person intended. Stewart v. Williams, 243 Ga. 580, 255 S.E.2d 699 (1979). Defendant police officer who pleads justification must show for warrantless arrest that the officer acted on probable cause, and for an arrest under a warrant that the officer reasonably executed it. Stewart v. Williams, 243 Ga. 580, 255 S.E.2d 699 (1979). Officer’s entitlement to immunity. - After an officer fatally shot a decedent, there were genuine issues of material fact about whether the officer was entitled to official immunity from the state law claims against the officer because there was a genuine dispute as to whether the officer used such force as was reasonably believed to be necessary to prevent death or great bodily injury or the commission of a forcible felony. Hampton v. Atzert, No. 14-11728, 2014 U.S. App. LEXIS 21226 (11th Cir. Nov. 4, 2014) (Unpublished). Action by police officer in self defense. - Because a police officer does not lose the right to defend oneself when the officer acts in the officer’s official capacity, an injurious work-related act committed by the officer, but justified by self-defense, comes within the scope of official immunity. Kidd v. Coates, 271 Ga. 33, 518 S.E.2d 124 (1999). Verdict of justification sustainable when evidence indicates reasonable grounds for self-defense. - When there is some evidence from which a jury

could reach the conclusion that a shooting resulted from the fears of a reasonable man that one’s own life is in danger and that shooting in self-defense was justified, there would be no tortious misconduct and a verdict for the defendant is sustainable. Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483, cert. denied, 436 U.S. 921, 98 S. Ct. 2272, 56 L. Ed. 2d 764 (1978). Loose and informal pleading. - When a loose and informal plea of justification is treated as sufficient, the court will do likewise. Savannah Elec. Co. v. Lowe, 27 Ga. App. 350, 108 S.E. 313 (1921). Justification constitutes a complete defense to an action for wrongful death. Parrott v. Wilson, 707 F.2d 1262 (11th Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983). Admission by deputy sheriff that deputy did not intend to hurt decedent. - After the decedent was killed while being arrested by the defendant deputy sheriff, since the defendant freely admitted that the defendant had no intention to even hurt the decedent, the conclusion must be made that the defendant’s admission precludes the court from holding that the defendant’s actions were justified as a matter of law. Patterson v. Fuller, 654 F. Supp. 418 (N.D. Ga. 1987). Cited in Phoenix Ins. Co. v. Gray, 113 Ga. 424, 38 S.E. 992 (1901); Cable Co. v. Parantha, 118 Ga. 913, 45 S.E. 787 (1906); Darby v. Moore, 144 Ga. 758, 87 S.E. 1067 (1916); Ingram v. Kendrick, 48 Ga. App. 278, 172 S.E. 815 (1934); South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 182 S.E. 61 (1935); Sellers v. Brown, 84 Ga. App. 614, 66 S.E.2d 765 (1951); Curtis Publishing Co. v. Butts, 351 F.2d 702 (5th Cir. 1965); Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976); Swift v. S.S. Kresge Co., 159 Ga. App. 571, 284 S.E.2d 74 (1981); Hodsdon v. Whitworth, 162 Ga. App. 793, 293 S.E.2d 70 (1982); Bendiburg v. Dempsey, 707 F. Supp. 1318 (N.D. Ga. 1989).

OPINIONS OF THE ATTORNEY GENERAL Medical examiner entitled to plead justification. - A medical examiner

who, for analytical purposes, drew a blood sample from a person at the direction of

the peace officer in charge of the investigation, and pursuant to the authority and under the conditions set forth in Ga. L. 1974, p. 561, § 1 (see now O.C.G.A.

§ 45-16-46), was protected from civil liability under former Code 1933, § 105-1801 (see now O.C.G.A. § 51-11-1). 1978 Op. Att’y Gen. No. 78-61.

RESEARCH REFERENCES Am. Jur. 2d. - 74 Am. Jur. 2d, Torts, § 49 et seq. C.J.S. - 86 C.J.S., Torts, § 12 et seq. ALR. - Danger of apparent danger of great bodily harm or death as condition of self-defense in civil action for assault and battery, personal injury, or death, 25 ALR2d 1215.

Civil liability of law enforcement officers for malicious prosecution, 28 ALR2d 646; 81 ALR4th 1031. Pleading self-defense or other justification in civil assault and battery action, 67 ALR2d 405.