*1 64662. IRELAND ELECTRIC CORPORATION v. GEORGIA EXPRESS,
HIGHWAY INC. Judge.
Pope, against filed suit Corporation Electric Ireland Appellant Griffin, E.W. alleging Inc. Express, Highway appellee scope of his within the acting Jr., appellee’s into a vehicle vehicle, stop and collided failed to appellee’s driving As a O. Miller. Quincy employee, by appellant’s being operated seeks appellant for which result, personal injuries Miller suffered of Miller’s for the loss expenses and medical recovery of Miller’s work perform to president [appellant’s] “requiring services at a cost Miller, performed would employee, Mr. services its $5,000.00.” to for failure motion to dismiss appellee’s granted
The trial court Appellant relief could upon claim which state a error. ruling enumerates has a employer herein is whether issue involved legal alleged of an of action
cause sustained injuries to services due of his loss outset, At the we result of the tortfeasor’s employee as a as a way in no be read shall opinion of this court reiterate that party’s cause of action injured comment (now 105-108 See Code tortfeasor. alleged of the § not the 51-2-2). simply party’s cause of action injured OCGA § judice. in the case sub issue Ann. 105-107 upon Code apparently bases its claim
Appellant for torts 51-1-9): may (now “Every person OCGA ward, child, or his servant.” himself, wife, his his servitium per quod law action the common Appellee argues the loss of services amisit,1 recovery for supported the master’s which longer no viable. is archaic and per quod viability of the action A determination of this ancient amisit origin servitium requires an examination a master an action which allows theory recovery. “The doctrine — at all extent that it survives the servant to the the loss of services of — Torts, status. Prosser on time when service was a reflects a (4th lineage 1971); and Servant 57 C. J. S. Master ed. gave to persons which early in the Roman law of remedy commences children, household, servants and paterfamilias sway over the head that with the domestic alike, were so far identified slaves who (4th Dictionary servant).” (of Black’s Law “Whereby he lost the service ed. paterfamilias, any of them gave rise to an action to the who recovery. alone was entitled to This idea was taken bodily into the English common law Bracton so that a master had both a direct action for to a servant or another under his power, as well as an indirect action for the consequential loss Sayre, of his services. Contract, Breach of Inducing Thus, L. Harvard Rev. 663 hardly treated a servant as more than a chattel of the *2 master. Inland Revenue Hambrook, Commissioners v. L. 3 Week R. (2 643, 3 All Eng QB 641 1956); 338 A. 57 L. R. 2d 790.” Frank Horton (Mo. 313, & Co. v. Diggs, SW2d proprietary interest of the in master the servant is exemplified by further relationship of the feudal lord to his villein or servant. “He owned any such servant and injury to him in injury resulted to the lord. In such society a state of it give was natural a master a cause of action injured one who his servant.” Nemo Foundations v. New Co., (181 River 687, 688) (1971). 155 W. Va. 150-1 It is interesting to note that in English jurisprudence, from which the action originally became part early law, a of our common day employer-employee relationship, based status, contract rather than has been theory excluded from this recovery. “The courts, American unanimous, while certainly not appear to be in substantial agreement with the [exclusion modern employer-employee relationship]. A number of courts have expressed disapproval of such action indicating a belief that it.should either be entirely discarded or at least not extended. See annotation 57 A. L. R. seq.; 2d, 2d 802 et Am. Servant, Jur. Master and Section 402; S., 57 C. J. Master and Servant Section 622.” Nemo Foundations Co.,
v. New River
supra at 151.
Narrowing the focus of the examination of the action at issue to
law,
Georgia
we note that Code Ann. 105-107 is but a declaration of
R.,
common law. Bell v.
Central
Indeed,
73 Ga.
concept
of the master’s property
interest
the servant as the
basis for an action to recover for the servant’s loss of services is
apparent.
“A master
property
has a
right
in the services of his
servant; otherwise, he would not be entitled to
damages
for an
invasion of such right.”
Co.,
Frazier v. Ga. R. &c.
70, 75 (28
101 Ga.
SE
684) (1897). However, while the
master’s
to recover for the loss
of services of the is acknowledged in the case law of Georgia,
specific instances in
actually
which this
occurs have
virtually
been
Rather,
nonexistent.
the rule allowing recovery in
regard
is most
often
stated
analogy
explanation
of the legal
whereby
fiction
a
parent may recover for the loss of services of his child. See Sorrells v.
Matthews,
129 Ga.
Allen v.
St. R.
(1907);
SE
Atlanta
(1) (1875);
Shields v. Yonge,
Moreover, sparse holding is not conflict with the case law First, form of action to be Georgia. brought recovery “trespass master’s for the loss of his servant’s services was vi armis, amisit, is, per has quod et servitium that the defendant person [servant], whereby trespass upon force committed a (Emphasis has sustained the loss of his service.” Co., supplied.) supra, “trespass &c. vi Frazier v. Ga. R. at 73. term damages et armis” is the common law action for for an plaintiff or committed with immediate and direct force (4th Dictionary ed. The issue property. Black’s Law Co., supra, Frazier v. Ga. R. &c. involved the father’s to a cause allegedly of action for the loss of his minor child’s services due to an such an action and negligent homicide. While the court allowed relationship, analogized it to the master-servant Court that 1897 case following used the illustration: “Blackstone, 3, 114, top vol. book page paragraph says: ‘In this case (referring servant), to a tort committed on the besides the remedy battery of an action of imprisonment or which the servant may himself as an individual the aggresssor, the master also, recompense loss, as a for his may immediate maintain an action trespass armis, vi et which he allege prove special must damage he has beating servant, sustained per quod amisit, servitium then jury will make him a proportionable pecuniary satisfaction’; which, in line Mary’s case, with Robert Coke, 113a, lays Lord Coke down my beat, the rule to be: ‘If servant is the master shall not have an action for battery, battery unless the is so great reason thereof he loses the service of his but the servant every himself for battery small shall have an ac- ” tion. ...’
This inference of intentional
is further supported by the
dicta in
(5) (8
Fluker v. Ga. R. &c.
The limitation of the applicability of the cause of action at issue to intentional torts is supported further requirement foreseeability as relating liability. to tort alleged foresee, cannot consequence as a of negligent acts toward an em- ployee, injury to the employer and hence we can find no legal duty to the employer. See Nemo Foundations v. supra New River at
In pertinent part, the complaint appellee’s states that “... stop failed to and crashed into the rear of the automobile” driven by appellant’s employee. While the foregoing allegation is sufficient under system our of notice pleading to state a cause of action for negligence, we find nothing contained therein sufficient allege *4 intentional tort. For reasons, the foregoing we affirm the trial court’s grant of appellee’s motion to dismiss for failure to state a claim upon which relief can
Judgment Quillian, J., affirmed. J., P. McMurray, P. Birdsong JJ., and Sognier, Banke, J., concur. concurs in judgment only. the Shulman, J., Deen, J., C. J., P. Carley, dissent. Decided March
Rehearing April denied Wallace, appellant. for Williams, Stephenson A. Barry W. Purcell, appellee. I. James W. Harper, John dissenting. Judge, Chief Shulman, tort, 105-101), (Code defining a Ann. 51-1-1 Under OCGA § § of a violation to sue for the unlawful may have had a appellant or the to contract this was a tort related whether private, legal right, Therefore, I dissent. legal right. of a pure tortious violation dissenting. Deen, Presiding Judge, application the majority’s limiting I the except must to amisit, OCGA codified at per quod servitium common law action torts. I (Code 105-107), involving intentional Ann. to cases 51-1-9 for such a limitation. authority Georgia under law find no 105-108) “every (Code provides OCGA 51-2-2 wife, child, or his by his his be liable for torts committed person shall scope the prosecution and within by his command or the by negligence business, are commited his whether same provisions, these applying me that voluntarily.” appears It wilful, employee difficulty finding more generally court has had than in employment, scope within the tortfeasor to have acted Co., 149 Reserve Ins. See Jones v. involving alleged negligence. cases Childers, App. (253 849) (1979); 134 Ga. Davis v. App. Ga. SE2d authority (215 297) (1975). Yet, persuasive relying upon the Georgia few cases narrowly reading the jurisdictions of other to recover for the loss of employer where an tried may from services, majority concludes that tort was intention- only where the al. recovery for out simply does not rule
The case law
R.
one. In Frazier v. Ga.
such as the
negligent injuries
cases
Court,
(28
684) (1897),
Co.,
As the cause action ultimately an loss of services extends from the idea of paterfamilias, incorporated English into which was the common law by majority the cause of suggests Bracton. that foundation of the antiquated relationship the employment is because modern is clear, however, based and is on contract not status. It that the doctrine, of principal incorporated element the as into the common law, not proprietary has been that a master has interest the servant, but rather the services of the an interest obtained by the master the employment. contract of As Blackstone commented, reason and upon foundation which all this “[t]he built, doctrine seem to be the property every man has service domestics; acquired by the of hiring, purchased by contract on Laws of giving Blackstone, them W. Commentaries the wages.” * England indicate, 417. As the above cases appellate our courts have analysis, adhered to that application and have not of limited the regular doctrine so as to relationships. exclude “The the of master to the incorporeal service of is an Frazier, supra, hereditament.” at p. leading Thus the two hand, as authorities to common law to the relating question at Lord Blackstone,2 Coke1 and agree generally that of action in gist the of case is loss of service. type apparently on majority position favors the taken heavily matter in other on written jurisdictions, relying the decision of Caplan Virginia Supreme Appeals President the West Court of Nemo Foundations v. New River W.Va. 687) (1971), opinion has in existing, our misconstrued Indeed, binding Georgia Supreme perilously it Court cases. comes do, cases, it, course, close overruling these which cannot its designate limitation on this cause of action. This court cannot as principles dicta propounded Court ratio decidendi. founding Thomas Jefferson and most of the fathers considered Lord Coke as the jurisprudence.
father true favoring science He differed with Blackstone’s sovereign parliament powerful referring attorney an all to these advocates as Ed., XIV, 63.) Jefferson, Writings p. Lawyers.” (Library Thomas Vol. “Blackstone hand, absolutely parliament sovereign left On Coke held as not the other questioned. open so it could door 2Sir copies Edmund Burke noted more Commentaries on the of Blackstone’s England. Law have been sold in See 150 the American Colonies than the whole Appeals (Coke Blackstone) Reports Ga. popular XL. As is a to which is more debatable issue. above, if exists even the cause of action
Notwithstanding occurs, granting the trial court erred only where an intentional motion to dismiss for failure to state a claim defendant’s plaintiffs complaint labels the which relief can be intentional; simply alleges it negligent neither nor stop “failed to and crashed into the rear of the defendant’s A plaintiffs employees...” complaint automobile driven being *6 only relief where it should be dismissed for failure to state a claim for prove can no set of facts appears beyond doubt that Assoc. Atlanta him relief. support of his claim which would entitle 252) (1978); Properties, v. Westminister SE2d Assn., Moultrie v. Atlanta Fed. Sav. &c.
77) (1979). rule a set of facts complaint Because the here does not out tort, involving majority’s reasoning, an intentional under the own complaint improper. dismissal of the was reasons, respectfully For the above I dissent.
65112. RODGERS v. GEORGIA TECH ATHLETIC
ASSOCIATION. Judge.
Pope, “Pepper” Rodgers brought Franklin C. this breach of contract to recover the Georgia Tech Athletic Association him perquisites value of certain which had been made available to Technology. the head coach of football at the Institute of parties summary judgment, Rodgers’ Both moved for motion encompassing only liability the issue of under his contract employment granted with the Association. trial court Association’s motion and denied motion. The issue Rodgers’ presented appeal Rodgers for resolution is whether entitled perquisites “fringe to recover the value of certain benefits” of his position as head coach of football under the terms of his contract of employment with the Association. coaching position was removed from his vote
Rodgers 18, 1979, the Association’s Board of Trustees on December De- contract of notwithstanding a written salary, In the contract cember addition to an annual Association, provided as an would be Rodgers, perquisites” pension entitled “to various insurance and benefits and as he became therefor. makes no claim for base eligible Rodgers