50 S.E.2d 154 | Ga. Ct. App. | 1948
"In order for the master to be liable for torts committed by his servant, the tort-feasor must either have acted by command of the master or the tortious act must have been perpetrated in the prosecution and within the scope of the master's business. There is no liability on the part of the master arising from the mere relationship of master and servant." Falls v. Jacobs Pharmacy Co.,
"11. That there is a considerable competition between the said two companies and numerous other industrial companies in the sale of insurance in Floyd County, and that during the months immediately preceding the date of the assault complained of, defendant Alred and other agents of the defendant company had made false disparaging remarks to prospective customers concerning *837 petitioner and the company he represented in unsuccessful efforts to hinder petitioner's sale of insurance in his territory.
"12. That on June 16, 1947, at about 9:30 a. m., petitioner was making a call on behalf of the Independent Life Insurance Company at an address on Mary Street, in the City of Rome, Ga.
"13. That at said time and in the same general vicinity, defendant Alred was making calls on behalf of the Life Insurance Company of Georgia, and in the course of covering his route he was also searching for petitioner.
"14. That as petitioner left a house on said Mary Street he was accosted by defendant Alred, who was waiting outside and who, without any provocation, assaulted petitioner and inflicted the injuries hereinafter set out.
"15. That J. G. Mann was working the territory with petitioner on behalf of Independent Life Insurance Company at the time of said assault.
"16. That an agent of the defendant insurance company, one `Pop' Tingle, seized and held said Mann at the time of the assault by Alred, and prevented Mann from stopping the affray.
"17. That G. W. Tingle, assistant manager of the local office of said defendant company, and W. P. Latimer, superintendent of the local office of said company, were seated in a parked car a short distance from the assault and witnessed same, but made no effort to prevent it or stop it until petitioner had been brutally beaten about the face and body.
"18. That there had been no personal difficulties between petitioner and defendant Alred prior to the time of such assault.
"19. That petitioner is 33 years old and weighs approximately 135 pounds where defendant Alred is approximately 35 years old and weighs in excess of 200 pounds.
"20. Petitioner shows that defendant Alred struck him in the face with his fist and then held him up to prevent his falling and continued to beat him about the head and face.
"21. Petitioner shows that as a result of said beating both eyes were blackened and he suffered numerous bruises and abrasions about the head and body, and that he suffered from a continuous bloody discharge from his nose for several days thereafter, and was under the care of a physician for several days after the *838 infliction of said injuries, all of which said injuries caused petitioner great physical pain and suffering.
"22. That said assault by defendant Alred was done in the prosecution and within the scope of his employer's business and with the active assistance of another agent for said defendant company, with a voluntary, wilful, wanton and reckless purpose to accomplish the employer's business in an unlawful manner, and was designed solely to intimidate petitioner in the conduct of his lawful business in said territory."
The Life Insurance Company of Georgia filed a general demurrer to the effect that the petition set out no cause of action against it. Alred, the agent of the Life Insurance Company of Georgia, filed no demurrer. The trial court sustained the demurrer of the Life Insurance Company of Georgia, and dismissed the petition as to it.
Counsel for both parties agree that the sole question for this court to decide is whether the allegations of the petition make out such a case against the Life Insurance Company of Georgia as can withstand a general demurrer. Counsel for the plaintiff cite, first, Gulf Life Ins. Co. v.McDaniel,
The court did not err in sustaining the general demurrer of the Life Insurance Company of Georgia, and in dismissing the petition as to it.
Judgment affirmed. MacIntyre, P.J., and Townsend, J.,concur. *840