43 Ga. App. 549 | Ga. Ct. App. | 1931
(After stating the foregoing facts.) As the principles of law involved in this case are, in the main, applicable alike to the issues raised by the demurrer and by the motion for a new trial, we will discuss these principles generally, giving due consideration to all the issues raised.
It is the office of a demurrer to deal with the sufficiency of allegations actually made, and it can demand that a petition, on pain of being dismissed, set out a cause of action and set it out with sufficient definiteness to put the defendant on notice of what material allegations he has to meet. However, a demurrer can not force a pleader to set forth his evidence or proof, or to go into unnecessarily minute details. The petition in the instant case plainly alleged that the defendant Moore was manager of the de.fehdant company’s store; that, as such, it was his business to
There is no saving grace in the contention of the defendant company that it had instructed its manager not to cause an' arrest. The petition of the plaintiff clearly shows that recovery is not sought because of any lawful action taken or occasioned by the manager and codefendant of the defendant company, but, on the contrary, recovery is sought because of the alleged unlawful, cruel, and inhumane treatment of the plaintiff; by said manager. However, assuming that the defendant company did give its manager instructions not to take legal steps to protect the company’s property, such instructions, in the face of the implied duty of the manager to protect his master’s interest, instead of relieving the company, may have caused the manager to resort to the tortious acts of which complaint is made. Being denied lawful process, and yet having the duty of protecting his master’s property, he adopted his own method of doing so.
The fact that the defendant company had not instructed or authorized its servant to pursue an improper course or to commit the tort would not necessarily prevent a recovery from the defendant company. Such a holding would preclude a recovery from the master for the misfeasance or malfeasance of its servant in practically every master and servant case, because no sensible master would likely instruct his servant to do a thing in an improper way or to commit an unlawful act. As stated in Fielder v. Davison, 139 Ga. 509 (77 S. E. 618) : “Omitting the fellow-servant doctrine, the general rule is that a master is liable for the tort of his servant, whether negligent or voluntary, if done by his command or in the prosecution and scope of his business. Civil Code, § 4413. The expressions, ‘in the scope of his business,’ dr ‘in the scope of his employment,’ or similar words, have sometimes been given too narrow a meaning. A master rarely commands a servant to be negligent, or employs him with the expectation that he will commit a negligent or wilful tort; but if the act is done in the prosecution of the master’s business, that is, if the servant is at the time engaged in serving the master, the latter will be liable.” (Italics ours.) The true question is, was the manager of the defendant
In Trawick v. Chambliss, 42 Ga. App. 333 (2) (156 S. E. 268), it was held that there was “no material variance between an averment that the defendant committed an act and evidence that the act was committed by him through his authorized servant or agent.” Section 4413 of the Code provides that “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 be by negligence or voluntary.” Under this section there are numerous eases parallel in principle to the instant case, where the master was held liable for the wrongful acts of his servant ‘even though he gave his servant no order or authority to commit the wrongful act and derived no benefit from the commission of the act. In the case of Perry v. Lott, 38 Ga. App. 729 (145 S. E. 479), a servant, while driving an automobile at the rate of 40 miles an hour at the intersection of two streets, struck a Eord automobile and demolished it. The place of the accident was four or five blocks from the filling station to which the owner told the servant to go. Though the owner had not commanded or authorized the servant to go to the place where the accident occurred, or to drive 40 miles an hour at the intersection of two streets, the owner was held liable for the damage occasioned by the servant’s wrongful act, because the servant was attending to the business of the owner at the time
In Savannah Electric Co. v. Wheeler, 128 Ga. 550 (58 S. E. 38, 10 L. R. A. (N. S.) 1176), a drunken conductor of a street-car, in a controversy with a passenger, fired a pistol and killed a woman outside the car. It was contended that this was an individual act of the conductor, unauthorized by the company, but the Supreme Court held otherwise. In the opinion in that case it was said: “Was the act of its conductor in shooting at the passenger attributable to the company, or was this the 'individual act of the conductor, for which the company was not responsible? '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 be by negligence or voluntary.’ . . Who was discharging this duty for the master? The petition alleges the conductor was so engaged. He was taking up fares not for
Clearly the petition shows that the tortious acts of the manager " arose out of and in connection with the business of the principal,” namely, the alleged stealing of the candy from the defendant company in the defendant company’s store, and by no stretch of the imagination can we conclude from the pleadings that it was an individual matter on the part of the manager, who had no personal grievance whatever against the plaintiff. This being ‘true, the question of "whether the agent was acting within the scope of his
No good purpose would be served by discussing seriatim the numerous grounds in the motion for a new trial. All have been carefully considered,, and none show cause for another trial. The issues raised are controlled by the authorities hereinbéfore cited. In view of its application to the issue involved in the instant case, it suffices here to quote the charge complained of in ground 17 of the motion for a new trial, as follows: “A master who 'puts a servant in a place of trust or responsibility, or commits to him the management of his business, or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion of protecting the master’s property, goes beyond the line of his strict duty or authority, and inflicts unjustifiable injury upon another. A company must take the risk of infirmity of temper, maliciousness, and misconduct (committed in the course of the servant’s employment) of the employees whom the company has placed in charge of its business.” This charge is a quotation which is quoted and adopted by our Supreme Court in Thompson v. Wright, supra, except that the trial judge, in charging favorably to the contention of the defendant company, has added that the tortious act must be in “protecting the master’s property,” and must be “committed in the course of the servant’s employment.” The addenda to the proposition laid down by our Supreme Court being favorable to the defendant company, and the whole stating a correct proposition of law, there is no error in the charge.-
The evidence supports the verdict, and the court did not err in overruling the motion for a new trial.
Judgment affirmed.