126 Ga. 404 | Ga. | 1906
(After stating the foregoing facts.)
1-3. When the first count in the petition is taken in its entirety it is manifest that it was the intention of the pleader to lay a cause-of action for damages flowing from the destruction of the business of the plaintiff by the wrongful conduct of the defendant as alleged in the petition. The refusal to deliver freight to the plaintiff, notwithstanding he was clothed with authority from the consignees to receive it, is not alleged for the purpose of recovering damages, that might result from the refusal to deliver in any particular case; but this constant and continuous refusal is alleged for the purpose of showing the effect upon the plaintiff’s business as dray-man. The count alleged that the plaintiff’s business was entirely destroyed. This resulted from two causes: first, the refusal of the agent to deliver freight which th'e plaintiff was authorized by the consignees to receive; and second, the conduct of the agent in going to the merchants of Villa Eica and persuading them to discontinue their contracts with the plaintiff. It is alleged that this, was done maliciously. In other words, the count when taken in its full -effect charges that the business of the plaintiff was maliciously destroyed by the wrongful conduct of the defendant. Malicious injury to the business of another has long been held to give a right of action to the injured.party. Barr v. Essex Trade Council, 53 N. J. Eq. 115. See also, in this connection, Lumley v. Gye, 2 El. & Bl. Q. B. 217; Ryan v. Burger & Hower Brewing Co., 13 N. Y. S. 660; Bernard Delz v. Winfree, etc., 80 Texas, 400; Jackson v. Stanfield, 137 Ind. 592; Lucke v. Clothing Cutters and Trimmers Asso., 19 L. R. A., 408. Our code declares, “When the law requires one to do an act for the benefit of another, or forbear the doing of that which may injure another, though no action be given in express terms, upon the accrual of damage the party may recover.” Civil Code, § 3809. The petition alleged that the plaintiff had contracts with the merchants of Villa Eica to deliver their freight for them, and- that the defendant through its agent maliciously procured the merchants not only to abandon their contracts but to violate them while they continued. It has been held that the malicious procurement of a breach of a contract of employment, resulting in damages, where the procurement is during the
4. A corporation is not liable for damages resulting from speaking false, malicious, and defamatory words by one of its agents,' even where in uttering such words the speaker was acting for the benefit of the corporation, and within the scope of his agency, unless it affirmatively appears that the agent was directed or authorized by the corporation to speak the words' in question. Behre v. National Cash Register Co., 100 Ga. 213. See also Ozborn v. Woolworth, 106 Ga. 460. If the second count of the-declaration be construed as an action for slander, it set forth no cause of action. While certain portions of the count might be so construed, when the count is taken as a whole it is apparent that damages were also claimed as resulting from an insult to the plaintiff, .growing out of the abusive and defamatory language used to him while he was engaged in conversation with the agent of the defendant,- in a matter relating to the business of the company. The code declares that a railway company is liable for any damage done by any person in its employment or service, unless the agents of the company have exercised all reasonable care and diligence. Civil Code, § 2321. This section has been construed to create a cause action in favor of a widow whose husband was slain by a depot agent while as a customer he was lawfully at the depot on business pertaining to the agency. Christian v. Ry. Co., 79 Ga. 460; Col. Railway Co. v. Christian, 97 Ga. 56. It has also been held that a railway company was liable for an assault and battery committed by an agent upon a person who was at the depot of the company transacting business with the agent in connection with the agency. Ga. R. Co. v. Richmond, 98 Ga. 495. It has also been held that a railway company was liable to a passenger for damages resulting from the conduct of the conductor in using to the passenger opprobrious words and abusive language tending to cause a breach of the peace and humiliate the passenger and subject him to mortification.
The first ground of the demurrer simply alleged that the petition set forth no cause of action. The second ground related to the matter of paragraphing and the division of the petition into counts, which, as has been said, was cured by amendment. The only remaining ground of the demurrer was in the following language: “Defendant prays that the petition of plaintiff be dismissed, because it affirmatively appears that if the _ acts attributed to the agent were by him committed, they were entirely outside the scope and province of the duties for which he was employed, and entirely without the sanction or authority of the defendant. Wherefore
5. There was no error in refusing to require the plaintiff to elect upon which count he would proceed. The law allows a plaintiff to embrace in one petition as many causes of action as he sees proper, provided that they are all of the same character, that is, all sound in tort or all sound in contract. He may proceed upon the petition with all the counts and recover upon one or all, as the law and facts may authorize.
6. The judge charged the jury: “The worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed.” This charge was assigned as' error for the reason that there was no evidence to authorize it. We find no evidence to authorize an instruction upon the subject of the worldly circumstances of the parties. The charge was erroneous, and prejudicial to the defendant, and requires the granting of a new trial. Ga. Ry. & Elec. Co. v. Baker, 125 Ga. 562. If upon another trial there should be evidence as to the worldly circumstances of the parties, the charge would be appropriate so far as the cause of action in the second count is concerned; for that count seeks to recover damages for wounded feelings and humiliation only. The judge should, however, distinctly instruct the jury that the worldly circumstances of the parties are to be considered only in reference to the cause of action set forth in the second count, and should not be considered in reference to the cause of action set forth in the first count.
The evidence as to the conduct of the agent of the defendant, when acting as agent for the express company in reference to pack
Judgment reversed.