24 S.E.2d 764 | Ga. | 1943
1. The provision of the Code, § 68-308, which, taken in connection with § 68-9908, makes it a misdemeanor for the operator of a motor vehicle "in case of accident to any person or damage to any property, . . due to the operation" of such machine, to fail to stop and upon request to give his name and address and the name of the owner, etc., applies only to such operator, and not to the owner; and the statute, being penal, does not have the effect of enlarging the scope of employment of such operator within the rule respecting the liability of a master for the torts of his servant.
2. Whether in a case where the operator of a motor vehicle was unaware of having had such an accident and he injured person or owner of the damaged property was pursuing him from the scene of the accident for the purpose of informing him of the injury done, the operator would be guilty of the offense made by the statute involved, or liable in damages, because of his refusal to receive such a report and a wrongful assault upon such person in connection with it, the owner of the vehicle, a corporation, is not made liable for such assault by the terms of this statute. *447
3. Where the servant steps aside from the master's business to do an act not connected with such business, the relation of master and servant is for the time being suspended, and the servant alone is responsible for his act committed during that period. L. N. R. Co. v. Hudson,
The application of the statute is tantamount to a holding that any infraction thereof by an employee, resulting in injury or damage to another, would render the employer liable for such employee's act, without regard to the rule that for such liability to exist the employee shall be engaged in the master's business and be acting within the scope of his employment. Without any effort to examine the circumstances under which an employer might be bound by the conduct of his employee, which conduct also violates this statute, let us measure that in the present case, and see if the enactment of this law changes the rule respecting the liability of a master for the torts of a servant. The inquiry on that precise question would seem to be as to whether the statute is operative on the master or the servant, on the employer or the employee. The statute is a penal one. The Code, § 68-9908, provides that "Any person violating the provisions of Chapters 68-1 to 68-4, relating to licenses, registration, and operation of motor vehicles, shall be deemed guilty of a misdemeanor." The General Assembly of this State, as did the legislative bodies of several sister States, *449
recognizing that the public, with the advent and influx of automobiles, was confronted with the growing evil of the so-called hit-and-run driver, sought by the enactment of this statute to curtail this menace; and with the knowledge that the bulk of travel over the streets and highways of the State consisted in the use of motor vehicles in the pursuit of trade and commerce, and knowing that for the most part such motor vehicles of necessity were operated by employers through servant chauffeurs and drivers, it was necessary to provide legislation that would bring to account with the law the offenders in this practice. Consequently the enactment of this statute resulted. Its violation was made a crime, and as written the penalty is assessed only against the operator, without reference to the owner of the vehicle involved or the employer of the driver, as the case may be. "Unless otherwise provided, such a statute applies only to the operator of the motor vehicle, and does not create any liability on the part of the owner who is not the operator; if, however, the owner is present and the vehicle is being operated under his control, he is liable for non-compliance with the statute, unless the operator disobeys his instructions." 43 C. J. 385, § 1450. The provisions of a statute similar to that under consideration were invoked in a civil action for the death of a boy struck by a truck, in the case of Nager v. Reid,
Upon this premise we proceed to an examination of the correctness of the trial judge's action denying the plaintiff any right to recover. "`A master is liable for the wilful torts of his servant, committed in the course of the servant's employment, just as though the master had himself committed them. This rule applies as well where the master is a corporation as where he is a private individual.' Central of Ga. Ry. Co. v. Brown,
The following rule as to the liability of the master for damages arising from an assault and battery committed by the servant is laid down in 39 C. J. 1306, § 1506: "Applying the doctrine of respondeat superior especially in its application to cases of willful, wanton, and malicious injury, a master is liable to a third person on whom an assault and battery is wrongfully made by his servants while acting within the scope of their employment, that is, whenever the nature of the employment authorizes the servant to use force, and he improperly exercises such authority against a person who is not in fault, or uses more force than the circumstances of the case require." The same principle is stated in 18 R. C. L. 207, § 263, as follows: "The liability of an employer for an assault and battery committed by an employee is to be determined with a view to the character of the business conducted. If the assault can be said to have been within the scope of the employment, the *453
employer will be held liable; but if the employee's act was foreign to the service in which he was engaged, the employer will not be held accountable." In Plotkin v. Northland Transportation Co.,
In further support of its ruling the Court of Appeals cited as being analogous to the present case two illustrations from 1 Restatement of the Law of Agency, 550, § 245 as follows: "A is employed by P as the driver of an ice wagon. While A is delivering ice, a number of children annoy him by endeavoring to get *454 pieces of ice. A throws a piece of ice at one of them in order to expedite his work. The fact that he also hopes to cause pain to the child and thereby get revenge for the annoyances does not prevent the act from being within the scope of employment." In the second illustration "A is employed to drive P's automobile. As T, a competitor, is passing the car which A is driving, A deliberately drives into T's car, doing this to prevent T from passing and also because A does not like T. This act may be found to be within the scope of A's employment." The principles outlined in these illustrations are not in point with the case under consideration. In each of these instances it will be observed that the servant, at the time of committing the assault, was actually engaged in furtherance of his master's business. In the first illustration the driver in throwing the ice was in the act of warding off would-be trespassers and protecting the property of his employer. The act of throwing the ice and the act of protecting the property were one and the same and were coexistent. A similar differentiation would likewise apply to the second illustration. There the act of A in deliberately driving into T's car may be found to be within the scope of A's employment because he was seeking to curtail competition to the interest of his employer. We cite another illustration from this treatise, found in the same section and volume as those above quoted, as follows: "A is employed as a truck driver for P. While so employed he gets into an altercation with T, a rival truck-driver, over precedence at a crossing. Having acquired precedence, A then leaves his truck and assaults T. Upon these facts alone, the act of A is not within the scope of employment." It seems to us this illustration is more analogous in principle to the present case than either of those cited by the Court of Appeals, and is in line with former decisions of this court. A different result might have been required had A, as in the second illustration referred to in the opinion of the Court of Appeals, driven into the truck of T while attempting to gain precedence. But if, after having acquired precedence, he then left his truck to commit an assault on T, a departure from the master's business is shown.
Deciding, as we do, that the provisions of the Code, § 68-308, are inapplicable to this case, it is clear that the evidence failed to present any question for determination by the jury.Georgia Railroad *455 c. Co. v. Wood,
Judgment reversed. All the Justices concur, except Bell, P.J., and Jenkins, J., who dissent.