47 S.E.2d 203 | Ga. Ct. App. | 1948
1. "The courts have settled down to the common-sense doctrine that a master is liable for the torts of his servant, committed in the course of the servant's employment, even though the tort be a wilful one." Central Railway Co. v. Brown,
2. "A corporation is responsible for the acts of its agents in the business of their employment, just as an individual is liable; and whether the agent committed a tortious act, is a question of fact for the jury." Century Building Co. v. Lewkowitz,
3. "While mental suffering, unaccompanied by injury to purse or person, affords no basis for an action predicated upon wrongful acts merely negligent, yet such damages may be recovered in those cases where the plaintiff has suffered at the hands of the defendant a wanton, voluntary, or intentional wrong and the natural result of which is the causation of mental suffering and wounded feelings." Dunn v. Western Union Tel. Co.,
4. The allegations of the petition as to the language and conduct of the defendant's bill collector, in his efforts to collect a bill from the plaintiff, and the injuries and damages resulting therefrom, set out a cause of action, and the court erred in sustaining the general demurrer of the defendant and in dismissing the case.
No special demurrer was filed to any of the allegations of the petition, but a general demurrer was filed as follows: "Said petition does not as a whole, nor do any of its several paragraphs, show a cause of action against the defendant." This demurrer was sustained in an order granting the plaintiff ten days in which to amend, "to meet the objections pointed out by the demurrer." The plaintiff did not amend, and the case was dismissed under the ruling on the demurrer. The plaintiff has assigned error in this court on that ruling.
"Every person shall be liable for torts committed by . . his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary." Code, § 105-108. "A corporation is responsible for the acts of its agents in the business of their employment, just as an individual is liable; and whether the agent was acting within the scope of his employment, when he committed a tortious act, is a question of fact for the jury."Century Building Co. v. Lewkowitz,
As was said by this court in L. N. R. Co. v. Hudson,
supra. "The difficulty is in the application of the general principle of law to the particular facts." The law is plain, but each case must be considered in the light of its own facts. It appears here that the person who is alleged to have committed a tort upon the plaintiff was the employee and servant of the defendant; that in the discharge of his duties as such servant he went to the home of the plaintiff to collect a small bill which she owed the defendant, which purpose was clearly within the prosecution of the business of the master; and that when the servant arrived at the home of the plaintiff, he immediately "became unusually boisterous, and started using vulgar, profane, and abusive language to the plaintiff," and threatening to take something from the house to get the money due the company. There is no allegation in the petition which demands the conclusion that the continuity of the employment of the agent as the servant of the defendant was *660
broken. The vulgar, profane, and abusive language was used immediately upon arrival and directly in connection with the servant's mission at the home to collect the debt due his employer. The use of vulgar, profane, and abusive language, without sufficient cause, as alleged in the petition, to the plaintiff, by the servant in his efforts to collect the debt, would authorize the jury to find that the language was used in the prosecution of the master's business and within the scope of that business. The fact that the servant followed up his alleged vulgar, profane, and abusive language, used to the plaintiff and in her immediate presence, with the lascivious suggestion that, "if he could not get the money any other way, he was going to `take it out in trade', meaning he was going to have sexual intercourse with petitioner," was simply "adding insult to injury," and was a continuation of the conduct already engaged in. The conduct of the defendant's servant, under all the allegations of the petition, was a tort committed upon the plaintiff, and presented a question for the jury as to whether such tort was committed within the prosecution and scope of the master's business. "The question whether or not the servant at the time of an injury to another was acting in the prosecution of his master's business and in the scope of his employment is for determination by the jury, except in plain and indisputable cases." Jump v. Anderson,
In addition to the general principles of law already cited, we call attention to a number of cases, very similar to the case at bar, in which this court held that a cause of action was stated as against a general demurrer. In Atlanta Hub Co. v. Jones,
It will be noted that all of the four cases just cited are like the case at bar, in that each of them involved bad conduct amounting to a tort on the part of a collecting agent of the defendant, which conduct was injurious to the plaintiff. InJewel Tea Co. v. Rowling,
This action was not for a mere negligent tort, but was for a positive and wilful wrong, and in such a case the plaintiff may recover for nervous shock and fright, with or without resulting physical injury. Atlanta Hub Co. v. Jones, supra. "While mental suffering, unaccompanied by injury to purse or person, affords no basis for an action predicated upon wrongful acts merely negligent, yet such damages may be recovered in those cases where the plaintiff has suffered at the hands of the defendant a wanton, voluntary or intentional wrong the natural result of which is the causation of mental suffering and wounded feelings." Dunn v. Western Union Tel. Co.,
Counsel for the defendant have argued this case at considerable *663
length, citing many authorities to the effect that the master is not liable where the servant steps aside or deviates from the service of the master, as was held in Savannah Electric Co. v.Hodges,
We have considered this case carefully and have examined all of the authorities cited in the briefs. It seems to us that, under the general principles of law applicable, and under the holdings in a number of cases cited, the petition stated a cause of action as against a general demurrer. General allegations in pleadings are ordinarily good against a general demurrer. MelbaCafeteria v. McClelland,
Judgment reversed. Sutton, C. J., concurs. Felton, J.,concurs in the judgment.