11 S.E.2d 234 | Ga. Ct. App. | 1940
Lead Opinion
Under the allegations of the petition as amended, the plaintiff at the time of his injury was an invitee of the defendant cotton mill; and it was a question for the jury whether or not the act of the defendant's store manager, in striking and injuring the plaintiff, was so closely connected with the employer's business as to render the defendant liable for the wilful assault of its servant. Accordingly, the court erred in sustaining the defendant's general demurrer.
Each of the defendants filed general and special demurrers. The *461 exception is to the judgment sustaining the general demurrer of the Exposition Cotton Mills.
1. In this court the plaintiff suggested in writing the death of the defendant S. A. Ferrell and made a motion that Janie King Ferrell, executrix of his last will and testament, be substituted as a party defendant in his stead in the bill of exceptions. The motion is granted.
2. The majority of the court, Stephens, P. J., and Felton, J., are of the following opinion: The cotton-mill company operated a store for the sale of merchandise and groceries to the cotton-mill employees. The plaintiff was upon the premises of the defendant company for the purpose of entering the store to transact business with the company. He approached the store while the door was open, and while he apparently was being invited to enter the store for the purpose stated. Therefore he can not be said to be a trespasser, or to be one who was not an invitee upon the premises of the defendant. The plaintiff was an invitee, and was entitled to protection as such from the defendant and its employees in charge of the store. Just as the plaintiff approached the store, and before he could enter the door of the store as a customer of the defendant, the defendant's authorized agent, who was the manager of the defendant's store, and who was keeping the door, shut it in the plaintiff's face and prevented an entry therein by the plaintiff. Upon the plaintiff's expressing a personal regret upon reaching the door when the door was being closed in his face, by the "utterance of some harmless exclamation," the defendant's agent in charge of the store and keeping the door assaulted the plaintiff. The plaintiff's exclamation was clearly connected with and grew out of the act of the defendant's agent in closing the door. If such agent, in resentment of the plaintiff's exclamation or by reason thereof, hit the plaintiff as alleged, it was a question for the jury whether the assault "was so closely connected with the authorized transaction of the company's business as to render the company liable for the wilful acts of its servants." See Schwartz v.Nunnally Co.,
Judgment reversed. Stephens, P. J., and Felton, J.,concur. Sutton, J., dissents from the ruling in thesecond division of the opinion, and from the judgment ofreversal.
Concurrence Opinion
While I concur in the ruling in the first division of the opinion, I dissent from the ruling in the second division and from the judgment of reversal, for the following reasons: Although a corporation is liable for a tort committed by its servant in the prosecution of its business and within the scope of his employment, I think that under the allegations of the petition as amended it is plainly shown that in what Ferrell did he was gratifying his own resentment and anger, that his conduct was in no way connected with the business of his employer; and that the court properly sustained the general demurrer which was filed in its behalf. It is alleged that at the time of his injury, the plaintiff was an invitee of the corporation, but the specific averments show distinctly that he was not. He had admittedly reached the door when it was being closed, and as he stood outside he uttered some undisclosed statement concerning his dismay or disappointment in arriving too late. The closing of the door clearly announced to him that he had come at a time when the invitation to trade, otherwise available to customers, did not extend to him. He acquiesced in the situation, made no protest, but only expressed his disappointment. What he said is not disclosed by the petition; but, with or without cause for resentment, Ferrell is shown to have become greatly angered. When he emerged from the store he was doing nothing in which the plaintiff and the employer were mutually interested. It is not alleged that the plaintiff, while outside the store, made inquiry about anything related to the corporation's business, or that Ferrell approached the plaintiff on any matter in which the employer was interested. It is alleged only in general *463
terms that he was acting on his own behalf and while in line of duty on behalf of the employer, and seized a bar of iron and struck the plaintiff. "`It is the general rule that the allegations of a petition will, when attacked by appropriate demurrer, be construed most strongly against the pleader. So, where general allegations . . are followed by specific detailed averments, the former ordinarily will yield to the latter.' McClure Ten Cent Co. v. Humphries,
It might be added that it is not material that, as alleged, the corporation was negligent in employing and retaining a manager who was of abnormally high temper and easily provoked, with or without cause, inasmuch as the exercise of such disposition was in nowise connected with the prosecution of the master's business at the time of the plaintiff's injury. Schwartz v. NunnallyCo.,