Bussell v. Dannenberg Co., 34 Ga. App. 792

Bussell v. Dannenberg Co.

34 Ga. App. 792 | Ga. Ct. App. | 1925

Bell, J.

(After stating the foregoing facts.)

'Under the allegations of the petition the plaintiff’s injuries were not occasioned by the act of a fellow servant. It is alleged that Collins was the defendant’s general manager, and there is nothing to indicate that he did not have the general authority which would ordinarily be implied from such title. As was said by the Supreme Court in Raleigh &c. R. Co. v. Pullman Co., 122 Ga. 706 (50 S. E. 945) : “The terms ‘general manager’ are words of large meaning. In and of themselves they imply duties and responsibilities which would devolve upon a person having the management and control of the corporate affairs. By giving such a title to this officer the corporation holds him out to the world as its managing agent, its alter ego, as the person having general and supreme authority as the immediate representative of the directors in the conduct of the corporate affairs and in its dealing with the public.”

The defendant, by its general manager, invited the plaintiff to its office and place of business, and the plaintiff was thus entitled to the protection due to an invitee. Civil Code (1910), § 4420. The defendant’s duty of providing such protection was, under the facts alleged, to be discharged through its general manager, Collins, who, instead of complying with this duty, violated it. The assault and battery occurred in the defendant’s office and place of business while the plaintiff was lawfully there for the purpose of transacting with its general manager business which appertained to the latter’s agency and while the latter was actually engaged in the transaction of such business. As in Seaboard Air-Line Ry. v. Arrant, 17 Ga. App. 489 (2) (87 S. E. 714), “the difficulty which led to the assault and battery arose out of and in connection with the business of the company which the agent had authority to transact;” and if it was not justifiable, the defendant company, as well as the actual assailant, would be liable for the wrong so inflicted. In Mason v. Nashville &c. Ry. Co., 135 Ga. 741 (4) *795(70 S. E. 225), which was an action for damages against a railroad company for an assault and battery committed by its conductor upon a passenger, the Supreme Court said: “At the outset it is well to remember that in dealing with the general question of whether a master is liable for a willful tort of his servant, the doctrine of respondeat superior furnishes the basis for decision, if there are no statutory provisions on the subject, but that, in certain instances, there is a relation between the master and the injured person, out of which arises a duty of protection; and this duty is to be considered in addition to the general doctrine mentioned above. . . A failure to bear this in mind has caused some confusion and lack of harmony in decisions.” While in each of the cases last cited the suit was against a railroad company, one being a suit by an implied invitee and the other by a passenger, there was involved in each of them a duty of protection to the person injured, and the principles enunciated in each are applicable in the case now under consideration. Even the duty of protection which a carrier owes to its passengers is not different in character from that which the defendant owed the plaintiff as an invitee in the instant case, although there is a very wide difference in the degree of the respective duties. In Southern Ry. Co. v. Chambers, 126 Ga. 404 (4) (55 S. E. 37, 7 L. R. A. (N. S.) 926), the Supreme Court said: “When one goes to the agency of a corporation, the corporation owes him a duty to protect him from the wrongful acts of the agent in charge of the agency. But when one who is an agent of the corporation commits a tort at places other than the place of the agency, the company is not liable for the tort, unless it appears that it authorized the act or ratified it after its commission.” And see Dunn v. Western Union Telegraph Co., 2 Ga. App. 845 (2) (59 S. E. 189). What we have just said will sufficiently suggest the point of difference between the present case and the following cases relied on by the defendant in error: Louisville & Nashville R. Co. v. Hudson, 10 Ga. App. 169 (73 S. E. 30); Brown v. Smith & Kelly Co., 12 Ga. App. 214 (76 S. E. 1082); Central of Ga. Ry. Co. v. Stephens, 20 Ga. App. 546 (93 S. E. 175). See also Atlantic Coast Line R. Co. v. Thomas, 14 Ga. App. 619 (6) (82 S. E. 299); Daniel v. Excelsior Auto Co., 31 Ga. App. 621 (121 S. E. 692), and cases cited.

But the defendant company insists further that, irrespective of *796the other questions involved, as the employer and the plaintiff, as employee, were presumably subject to the workmen’s compensation act, the plaintiff’s claim would be cognizable only by the industrial commission. This contention, however, is untenable, for the simple reason that it does not appear that the defendant employer had in its service as many as ten employees in the same business within this State. There is no presumption that an employer and an employee are operating under the provisions of the compensation act where the employer has less than ten employees in the same business within this State, and there is no presumption as to how many employees a particular employer has. See § 15 of the workmen’s compensation act, Ga. L. 1920, p. 167. For this reason, we hold that it does not appear from the petition that the plaintiff and the defendant were operating under the compensation act, and in doing so we, of course, make no ruling as to what would be the rights of the parties in such a case. The petition set forth a cause of action against the Dannenberg Company and the court erred in sustaining the general demurrer of that defendant.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.