29 Ga. App. 524 | Ga. Ct. App. | 1923
1. 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 setting up agency are followed by specific detailed averments, the former ordinarily will yield to the latter. Baggett v. Edwards, 126 Ga. 463 (55 S. E. 250); Palmer Brick Co. v. Chenall, 119 Ga. 837, 844 (47 S. E. 329); Lewis v.
2. The allegations with reference to the defendant McClure Ten Cent Company are somewhat different, in that it is alleged that when the plain- • tiff was in the act of leaving that establishment and was accosted by the said Mrs. Moore (who proclaimed herself a detective and as such sought
(а) It will be noted that the ground of the complaint against the McClure Ten Cent Company with reference to the conduct of such individual employees is based upon the alleged specific tortious acts committed by them, and the petition does not in any way base its complaint upon any dereliction of duty on the part of such defendant with respect to its failure to extend protection to its customer while unlawfully and properly within its place of business. No such question being involved in the record, the ruling of this court in Moone v. Smith, 6 Ga. App. 549 (65 S. E. 712), could not under any view be applied, since a plaintiff’s right to recover for negligence is limited to the grounds of negligence actually forming the basis of his action. Charleston &c. Ry. Co. v. Patton, 22 Ga. App. 554, 556 (96 S. E. 504); Central of Ga. Ry. Co. v. Weathers, 120 Ga. 475, 479 (47 S. E. 956); Hudgins v. Coca Cola Bottling Co., 122 Ga. 695 (2) (50 S. E. 974).
(б) The averments of the petition that such acts and conduct of McClure’s, floor-walker and said named house detective were the acts of defendant’s servants, done within the scope of their authority as such, are not subject to general demurrer, although it may appear upon the face of the petition that the attempted arrest and other alleged tortious conduct participated in by such employees were done in connection with and as the result of an alleged wrong committed by the plaintiff at another and different place of business; this for the reason that it cannot be said as a matter of law that the averments that such acts were done by the servants of such defendant within the scope of their employment are untrue. The general demurrer of the McClure Ten Cent Company was therefore properly overruled.
Judgment reversed on the hill of exceptions of Isaac Silver & Brothers Company; judgment affirmed on the hill of exceptions of McClure Ten Cent Company.