5 Ga. App. 271 | Ga. Ct. App. | 1908
(After stating the foregoing facts.)
We think the case was properly brought, under the provisions of §3817 of the Civil Code. “Every person shall be liable for torts committed by his wife, and for torts committed by his child or Servant by his command or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary.” It is useless at this time to discuss the ruling in Lockett v. Pittman, 72 Ga. 817, in which Judge Hall, construing the word “servant,” as used in this section, restricted it to domestic servants, or to the-fact that this court in Patterson v. Sams, 2 Ga. App. 755 (59 S. E. 18), referred to the decision in the Lockett case. In neither of these cases did the decision depend upon the restricted construction placed upon the word “servant” by Judge Hall. In the Patterson case this court held that the lower court did right in overruling the demurrers; and the ruling in the Lockett case was merely adverted to in passing, as much because of its peculiarity as anything else. Personalty, we do not concur in the view that the word “servant,” as employed in §3817, is restricted to mere domestic servants’; for a corporation, under this definition, might not have a single servant. A domestic servant, according to Webster’s International Dictionary, as well as Bouvier’s Law Dictionary, is “a house servant;-a household assistant; one .who lives in the family of another.” The term does not extend to workmen and laborers outdoors. Wakefield v. State, 45 Texas, 558. While Lockett v. Pittman, supra, as the older adjudication, is controlling,
We had in mind that what was said in that case was perhaps not controlling, and that the court, after pointing out that the proceeding in that case was highly penal in its nature, finally concluded its opinion in the Lockett case by saying: “perhaps'a recovery for the actual damages proved in the ease might have been' sustained upon the evidence disclosed.” To our minds, if any recovery against the defendant, restricted to the actual damages, no matter how small, growing out of the tortious act of his overseer or working boss, could have been sustained, then the word “servant” could not be confined merely to domestic servants; and for that reason,- in holding in the Patterson ease, supra, that the court did not err in overruling the demurrer, we did not rule that it was necessary that it appear that the servant was a domestic servant, but used the following language (p. 756): “Even if in an action brought in the superior court it were necessary to allege -special facts showing the servant to be a domestic servant,” etc., this is not necessary, for section 3817 of the code gives the right ■of action for torts committed, “whether the same be voluntary or by negligence.” And it must be remembered that in W. & A. Railroad v. Turner, 72 Ga. 292 (53 Am. R. 842), which antedated the decision in the Lcfckett case, supra, and in which the decision was rendered by a full bench, it was expressly held that §§2203 .and 2961 of the then code (which are now §§3031 and 3817) must be construed so as to harmonize both, and allow both to remain of force in the cases to which they apply. In the Turner case a judgment of $700 for a wilful trespass by a conductor while in the prosecution of his duties was sustained.. The present case’ can well be distinguished from the Lockett case, even if that decision, was authority as to torts voluntarily committed, because the plaintiff in the present case relies solely upon negligence as the cause ■of his injury. Even if this - distinction does not exist and the plaintiff has no right of action under §3817, as the word “servant**