59 Ga. App. 70 | Ga. Ct. App. | 1938
This ivas an action by Forrest Turner Broome, by next friend, against Primrose Tapestry Mills and Billie Cooper for damages growing out of an alleged unlawful assault on the plaintiff by Cooper while acting within the scope of his employment with Primrose Tapestry Mills. At the conclusion of the evidence of the plaintiff, the judge, on motion, entered a nonsuit as to Primrose Tapestry Mills. Thereafter, on motion of the plaintiff, a mistrial was granted as to the defendant Cooper. The plaintiff excepts to the judgment of nonsuit.
The evidence offered by the plaintiff in its material parts was as follows: Forrest Turner Broome testified: “Some of my boy friends and I had been down to the creek, and in coming back crossed the property of the Primrose Tapestry Mills. Mr. Cooper had told us to stay off of the property and we had forgot about it.
Eobert Savage testified: “We come across the grass and he told us to stay off of it, and so we started on and he got in the car and drove around the curve. He didn’t say anything to us about staying off the grass or staying off of the mill property on the day this happened more than just this one time; it was that same day, he told us not to come across there any more. Then he got in the car and drove around the curve. This boy then called
Harold McCain testified: “I first saw Mr. Cooper down there in front of the mill, fixing to get in the truck and go home. They got in the truck and come up and passed us, and we got up a little further there and we made like we were shooting at the truck. We did that by just holding up our hands, and made noise like we were shooting, just playing going up the road. Forrest called Mr. Cooper ‘Shorty’ at that time, and Mr. Cooper got out and come back and asked who done it, and Forrest said he did; and Mr. Cooper grabbed him by the neck and kicked him and choked him. . . He [Cooper] didn’t say anything to us when we come across the grass, and we went on and got back in the road, and went about fifty yards from where I first saw him, up there around the curve, and we were in the road. Up to that time he never had said a word to us. He then passed us boys in his truck going out, and we were on the road and so was he, and when he passed him, Forrest hollered, ‘Hello, Shorty.’ That was not on the mill property at all, that was just on the road. When Forrest said ‘Hello, Shorty,’ I raised my hands up with fingers pointing at him and said ‘Bam, bam.’ He had already passed us on the road and the truck stopped and he got out and came back towards us, and said
William Cooper testified: “My position with the Primrose Tapestry Mills is superintendent. My duties are to run the place inside and outside, to take care of it. As to whether those duties require me to take care of the grounds of the company, we have a Avatchman there day and night, but many times a watchman does not see everything, and if I see any thing Avrong I suppose it is iny duty to correct it. . . On this particular day I was leaving the mill I saiv those three boys cross over the far edge of the lawn, and I says, ‘Boys, you can’t go down there.’ That didn’t make me angry. I went back and told them ‘If you must come doivn here, aauII you please use the road,’ and they went and got there. I didn’t take hold of this boy; he left, they Avere still on the lawn. One of the boys didn’t run, they were three together. That is all I said to them. I made no effort to put them off of the ground. I didn’t take hold of the Broome boy and try to put him off the place, neither did I try to put him in the truck and take him to town at that time. I saw them there and told them to use the road and not to walk over the flower beds and laAvn, and the three boys were together and they started off. Our car Avas stopped there and Miss Bryson, Miss'Washington, and Miss Bradshaiv were in the car, four of us. That AA'-as a Ford toAvn car, and I got -in it and started off, and one of the boys passed a remark; that is vidiat made us stop. They didn’t.call me ‘Shorty.’ It sounded like ‘a s. of a b.’ to me and that is the reason that we stopped. It sounded like that, I couldn’t say hoav that he did. I am hard of hearing a little. So I Avent back. They hadn’t gotten to the truck yet; they were still on the ground there. As to Avhether I Avent back to get them off of the ground, and not because they said something to me, I didn’t knoAv Avhether they were going to stay there or not. I didn’t try to put any of them off of the ground at that time; I went back to find out what the boy said. I had the truck stopped and Avent back and in five feet, it had just started. The boy didn’t then promptly tell me he had called me ‘Shorty,’ he didn’t say anything about ‘Shorty.’ That is the first time I heard the word, is to-day. It might be that those boys Avere just playing like cowboys and saying ‘Bam, bam,’ and shooting, but there has been so much stuff de
Where a wilful and unjustified assault is committed by a servant within the scope of his employment, the master is liable for the injury thus inflicted under the doctrine of respondeat superior. Gomez v. Great A. & P. Tea Co., 48 Ga. App. 398 (172 S. E. 750), and cit.; Central of Ga. Ry. Co. v. Brown, 113 Ga. 414 (38 S. E. 989, 84 Am. St. E. 250); Savannah Electric Co. v. Wheeler, 128 Ga. 550 (58 S. E. 38, 10 L. R. A. (N. S.) 1176). On the other hand “if a servant steps aside from his master’s business, for however short a time, to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not liable.” Savannah Electric Co. v. Hodges, 6 Ga. App. 470 (65 S. E. 322). While it is true that whether the servant was acting within the scope of his employment at the time of the alleged assault is generally a question for the jury, yet where it is plain and palpable that at the time of the assault he was not so acting, this court may so determine, as a matter of law. In the present case it seems to be manifest from the testimony of the plaintiff’s witnesses that the real purpose of the conduct of the servant Cooper, in making the assault upon the plaintiff, was to satisfy personal resentment and anger for the abuse and disrespect which he thought the plaintiff guilty of towards him, and was not done in carrying out any object of his employment. In such instance, he was not acting within the scope of his employment, and the master, Primrose Tapestry Mills, can
It is true, according to the testimony of the plaintiff and his companions, that immediately before the assault he had been trespassing on the property and walking on the grass contrary to the orders theretofore given him b.y Cooper; and, according to Cooper, that they were still on the property at the time of the assault, and that Cooper was the superintendent of the mill and the property, with authority to protect the same from trespassers; but it is manifest from all of the testimony that Cooper did not object to, or feel it his duty to evict the plaintiff from, his position in the road where he was standing with his companions when Cooper passed them in an automobile, but .that he became incensed upon the plaintiff casting what he thought to be a disrespectful remark at him, and that he thereupon stopped the truck and went back to the place where the plaintiff was standing, and after ascertaining that the plaintiff was the one who made the remark, assaulted him. His state of mind and his purpose are made crystal clear by the only remark which he made after getting out of the truck and walking back up the road to the place where the plaintiff and his companions were standing, which was: “Who said that?” He apparently was not interested or concerned in the fact that the plaintiff and his companions had been on or were trespassing on the property of his employer, but intended only to and did direct his entire attention to the one of the boys who had made what he thought was a disrespectful remark. The fact that Cooper, during the assault, may have attempted to or did evict the plaintiff from the property, or that the assault may have had the effect of deterring the plaintiff from future acts of trespass, can, as we see it, make no difference
In the case of Illinois Cent. Ry. Co. v. Ross, 31 Ill. App., 170, it appears that a flagman of the railway company at a street crossing, exasperated by the abusive language of a boy, threw a lump of coal at him while he was on the premises of the company. The court said: “The proof is clear, that before he threw the coal Tucker had done and ended all that he supposed to be his duty or intended to do on account of anything the plaintiff had done affecting the company. He had actually turned away from the scene of the difficulty, and was going back to his place on the street, without any attempt or any show of purpose to remove anybody from these grounds, when the new provocation, having no relation to the' company or any of its affairs, induced the wrongful act in question. Manifestly it was not ddne to clear the right of way, nor otherwise in furtherance of appellant’s business, but in purely personal resentment of a purely personal affront. . . Then, if everything previously done by Tucker had been' within the line of his employment, and the act in question in fact grew out of it, and would not have been done but for what had previously been so done, still, if it was separated from all that preceded, and clearly distinguishable as to time, motive, and object, and was on purely personal account of the servant, the company would not be liable for it upon any authority implied from its relation to him.” We think this language peculiarly applicable to the present case. See also Chicago & A. R. Co. v. Randolph, 65 Ill. App. 208; Johanson v. Pioneer Fuel Co., 72 Minn. 405 (75 N. W. 719).
For the above reasons we are of the opinion that the court did not err in awarding a nonsuit.
Judgment affirmed.
