*1 SALES, INC. A H CAMPER & HAYNIE v. 49419. Judge. Clark, v. A & H (Haynie on certiorari Court Supreme Sales, having judgment reversed
Camper Sales, 132 court in v. A & H Haynie Camper of this 354) is vacated judgment our previous and set aside. In accordance opinion court Court of the lower re- Supreme judgment versed. J., Bell, J., Quillian, C.
Judgment reversed. concur.
Decided March Worth, R. appellant. Amos Hurt, Richardson, Jones, T. Hill & W. Seaborn Gilliland, Cullen for appellee.
49907. WILEY v. GEORGIA POWER COMPANY. Judge.
Evans, Mrs. Thelma Wiley sued Georgia Company, supervisor, James for damages because been having subjected humiliation, embarrassment, etc. degradation, on brought supervisor’s said having cоmmitted assault her, that, battery upon on October he laid his hands her in a grossly manner, improper permission, without her and caused her to suffer extreme physical and mental anguish and She damage. that she the incident alleges reported Company’s for the manager Gainesville district; and thereafter defendants threatened her, intimidated cursed and used abusive language her, and towards threatened her with of her job; loss then did take her actually job from her and away replaсed her with a black employee. moved for summary
judgment, granted, which was appeals. Held:
1. There was an issue for the as to jury liability, alone, theories, on one but on three theory separate to wit: *2 (a) The evidence was sufficient to create a jury issue as to whether James A. supervisor as for Georgia Pow- er Company was a vice-principal, and not a mere fellow-employee, of If plaintiff. he was a vice-principal, Georgia Power is liable for his wrongful acts (b) towards plaintiff, evidence is sufficient to create an issue as to whether Georgia Power Company and its supervisor conspired to force plaintiff to resign her employment, do, her so to refusal wrongfully (c) discharged her. The evidence is sufficient to create an issue as to whether Georgia Power Company became liable for the conduct wrongful of its supervisor, by acts, such ratifying his retention in through employment, and otherwise. First, there was an issue of fact as to whether
Georgia Power Cоmpany had on October 1972, of facts or circumstances sufficient put on notice its supervisor acts; had committed immoral or that relationship supervisor-employee between him and Wiley Mrs. would likely result some such act as actually Further, thereafter happened. the movant conceded that Wiley Mrs. offered the affidavit of J. Dwight Eavenson, District Supervisor Sales for Georgia Power Company, who testified that prior 17, 1972, to October three female employees had told him of molestations by supervisor him; asked for protection from and to be sure were they not left alone in the him; office with that Mrs. had Wiley come to him personally three or four months before October and requested that she not be left alone in the office with said supervisor. then,
But the trial court with agreed defendant’s contentions that because Mrs. knew of Wiley the amoral and amorous propensities of the supervisor towards workers, female she should not havе continued to work him; with and that the master is not liable here because could protected herself by refusing to work him (presumably by job). quitting Defendant and on authorities many cited judge trial which this proposition, rule in support "fellow-servant” the risk of to assume one servant in effect requires rule a fellow servant. injury by allegations par overlooks theory
But accrued to damages complaint 3 of the agraph in the employment "While plaintiff’. Smith, a of James supervision under the Under the . . .” most must be construed pleadings Practice Act all
Civil DeFreitas, 117 v. Harper the plaintiff. toward favorably 260); Bonding v. A-1 Hunter SE2d App. Ga. 246). Service, And motions the motion "the party opposing for summary judgment inferences.” favorable must be the benefit all given 178, 179 Life, v. National McCarty Smith was A is raised as to whether jury question if servant, and he was a fellow merely vice-principal rule relied on the fellow servant vice-principal, Harrell, 115 Ga. In Maxwell appellee inapplicable. *3 (153 "While thе 97, 653), court held: 98 SE2d this App. of a negligence for the ordinarily master liable (Code his own 66-304), he is liable fellow servant for him.” acting that his vice negligence principal or for Mills, 127 In Moore v. Dublin Cotton (Emphasis supplied.) 2,3,4, 5, 609, also Headnotes 610 SE and Ga. a in its 6, 7, 8, 10, grant the trial court was reversed jury held that a and was employer, nonsuit to defendant company’s as to whether the was question presented or not. It was relevant to show was a agent vice-principal "foreman,” "overseer,” in con etc. that he was called char of order he and the type gave nection with the Atlanta Also see performed. that was acter of work (1); Mallory v. 137 Whiters Cotton v. 69 Ga. Factory Speer, (97 (3) 453); Co., 47, 48 SE Steamship App. (34 587). (1) 454 v. & Woodson Johnston case, have been called Therefore, in a should jury Georgia Power to decide whether the employee; mere fellow vice-principal was a or could and if a the Power vice-principal, Georgia conduct towards wrongful have been held liable for his plaintiff.
190 Next, question a is created as whether jury liability can for Georgia escape its conduct, of its as conjunction supervisor, with that is set 4 and 5 6 of complaint forth in the as paragraphs "The Plaintiff the incident to the reported proper follows: Mr. authority the Miller Company, Watkins, District, the for the manager Gainesville Mr. Watkins he acknowledged that was aware the circumstances. thereafter, that
"Plaintiff shows the defendants pursued course of threats and intimidation against Plaintiff because of this incident including cursing threatening abusive the Plaintiff that language, she might job, lose all of the time the district manager was her to assuring contrary.
"The Plaintiff was then notified by defendants that would replaced employee, she be black defendant, thereafter did Company, then black replace Plaintiff with a employee.” It is significant both charged are defendants with the against aforementioned conduct plaintiff; this is sufficient to prеsume they conspired together, as both same same thing, person, about the matter, same and at the same time. One the employer and the other In supervisor. order find conspiracy alleged proven necessary or it is not word used, is it "conspiracy” necessary be nor to allege the co-conspirators ever met together, tacitly agreed to the of conduct course which was the fruit of the Jackson, 123, v. 122 conspiracy. Grainger Ga. (176 279); State, SE2d v. 142, Walden Ga. 110); Nottingham Wrigley,
Our courts
spoken
loud and clear
to the
as
right
livelihood,
one to earn a
and to seek redress against
*4
anyone
wrongfully
who
causes him to be discharged from
DuPree,
590,
In
v.
employment.
597,
Luke
158 Ga.
(124
13),
SE
it
if
very
is made
clear that A contracts with
B,
contract,
and C induces A break
B may
that
then
sue
C;
A
contract;
both
and
that
has a
right
he
in the
property
597,
may
both;
that he
sue one or
at p.
and
"Whoever
assists in the
wilfully
doing of an unlawful act becomes
act [citing
of such
consequencеs
all the
answerable
(69
529,
Goings,
Brick Co. v.
Chattahoochee
865)].
to a contract have
that the
theory
parties
On the
SE
un-
therein
'act of another which
right
any
a property
such
of
enjoyment
interferes with
is
cause
lawfully
”
Evans, 108 Ga. App.
v.
Studdard
Again
action.’
defendant
sued the
attorney
an
to have his
for conspiring
trainmaster
railroad and its
it was
employment;
his contract of
client repudiate
trainmaster were
and its
employer
both the
held that
quite
822-823 is
at
liable,
pages
and thе discussion
On this
judice.
in the case sub
to the facts
applicable
may
employer
an
although
been held
subject,
has
of his
the employment
to terminate
have the right
time,
employer
if
third
person
at
employee
any
an
eventuality
discharge,
about
bring
conspire
Gandy,
Ott v.
of them.
lie
both
against
action will
180).
(1)
right
(and
is
private
enjoyment
private property
citizen,
every
every
right
an absolute
property) being
interferes with such
unlawfully
act of another which
(See
lie.
Code
is а tort for which an action shall
enjoyment
105-1401.)
the act of one is the
Where parties conspire,
Wall,
who had committed the wrongful acts was rewardеd by retained in being employment!
But it has been argued plaintiff could have protected herself by refusing to continue in employment with this employee, supervisor fellow this who had such amoral and amorous propensities. Is is held out sop to this — — virtuous job female quit your protect yourself and then you show that exercised ordinary care and — Is that the diligence. price of in if decency this state she didn’t want the supervisor’s hand on her and caressing her —she quit job? must It is our belief that a virtuous fеmale is entitled to a different type protection; when she reported conduct, supervisor’s her employer should not have made it necessary her to continue to him, and most surely work should not have dis- charged reported her because she him. A issue jury was created here. a Finally, jury issue created was as to whether was liable for its supervisor’s
conduct through conduct, said in ratifying his retention in See Code employment. 4-303.
In Crockett Bros. v. 3 Sibley, Ga. 554 SE 326), it is held that: "Where a wilful trespаss is committed by an agent, there is evidence that it was either commanded or assented by the principal, section 3031 Code, the Civil on the torts, ratification of is applicable to the issues.” In Gasway Co., v. Atlanta & W.P.R. 58 Ga. (4), 216 it is held that to retain an in employee service after commission of a tort is an implied ratification of his Pool, conduct. In Napier v. other methods of ratification of the agent’s recited, tort are such as mere silence by the employer after disсovery of the wilful trespass, and see Georgia cases there cited. In Turner v. Joiner, 907), it is held: "Where the principal ratifies the tort of the agent after its commission the liability of the principal is the same as if it, he had commanded provided the ratification is had with full on the of the part principal manner in which the tort was committed.”
In the judice, case sub Georgia Power not merely retain in employment, silent, or remain but it acted in conjunction with its intimidating One of fellow servant plaintiff. discharging that of Smith majority cited opinion cases simple Sibley Mfg. involving discusses "ratification” only. briefly This case negligence fact that defendant "The p. language: at ratification. injury retained Benson after If all, injury it is when only at applies wilful ratification That is supplied.) (Emphasis servant.” inflicted *6 not here; supervisor done the exactly what was he committed a wil- negligence; simple gross commit or in retained him injury; Power Georgia Company ful him to and allowed to continue harass and employment abuse and to in the of her participate causing loss This was of of the tort. job. high degree a ratification
For all foregoing summary judgment the reasons no to in should been Power granted case, and this of the trial court reversed. judgment is Deen, J., Quillian,
Judgment reversed. P. and Stolz Marshall, JJ., Bell, J., Pannell, J., P. concur. C. Webb, JJ., concur Clark dissent. specially. 6,
Submitted November Decided March Rehearing April 2, Denied N. Crudup, appellant.
John for Jr., Smith, Frost, for & Smith Smith R. Wilson appellee. specially. Judge, conсurring Chief
Bell, of an propensity Involved in this case is a criminal — a battery least toward assault agent tending at had notice and did propensity company which circumstance, employer Under this nothing about. be this criminal cannot propensity, having knowledge from this injury merely resulting insulated because scope agent’s its an act within propensity bywas another can authorize authority lawfully no one the fact relieved by commit a Nor is employer crime. was aware the fellow servant herself in the master’s remained and nevertheless propensity lawfully to assume not be forced may for one being the risk of victim of a crime. for an Liability type incident of this should be governed by the principle an to furnish employer required its employees safe place to work. There is a failure fulfill this duty an where employer retains its service about premises one has criminal whom knows propensities. Liability is incurred by the master when results to injury within his premises another from an act out arising natural inclination commit a crime. Whether this occurred in case jury is a question.
I am authorized to state that Presiding Judge Pannell concurs this special concurrence.
Webb, Judge, dissenting. Wiley Thelma from sought $100,000 James Smith damages allegedly suffered humiliation, loss "income and wages, degradation, embarrassment, cohesion,” resulting from an unlawful assault and battery by Smith, James A. "by laying his hands a grossly manner improper [her] and without permission consent,” [her] while she was employed by Georgia under supervision of James A. for the *7 Company. Mrs. Wiley alleged that the Power Company "knowingly let be subjected [her] to this incident and to failed take any occurrence, the steps prevent had although they complete of knowledge circumstances”; that she reported the incident to the of proper authority Power thereafter Company; the Power Company and Smith "pursued a course of threats against intimidations of because [her] incident including cursing abusive language” threats she might job; lose and that she fact a replaced was black by employee.
The Power Company’s motion summary itself judgment granted, as to was it is from this judgment that Mrs. The Wiley appeals. trial court in its order granting summary judgment, after of the review record, entire concluded there no genuine issue (1) of material as controlling fact to three issues: acts of alleged James A. Smith on October 1972 were not the acts of Georgia Power nor Company, employer, command, were not within the nor prosecution Smith, employment of James A. and if scope within between James occurred, it matter personal they (2) Pow- Wiley, plaintiff; and Mrs. A. Smith of facts or no notice or had Company er notice that its em- on put circumstances sufficient A. Smith had committed immoral acts James ployee 17, 1972, to October nor that prior relationship him and Mrs. would supervisor-employee Wiley between in the on likely alleged having result acts as occurred (3) 17, 1972; Oсtober Wiley Mrs. was a temporary of the employee and fellow servant with Smith, A. had personal knowledge James she actual prior immoral acts and the immoral alleged propensities Smith, of the co-defendant and her James A. co-employee, before incident of October alleged she continued to A. work and was with James Smith working in the service of the with such knowledge at the time of the incident. alleged Wiley
Mrs. in her affirmed that deposition she was a temporary and that after the employee, alleged incident 17,1972 on October she continued to work association with Mr. Smith until her terminated March 8, 1973. The first that the acts of James ruling, alleged supervisory employee
Company, were outside the scope employment, his were not at command, the company’s personal and a matter between Smith and Wiley, Mrs. is supported by affidavits offered by movant Power and is correct.
"It is if well settled that a servant steps aside from his business, master’s timе, for however short a to do an act which is entirely it, disconnected with and injury results to another person voluntary because such independent act, the master is not liable for the tort.” v. Postal Stafford Co., 58 Telegraph-Cable
"Where the tort of the employee wholly personal *8 himself, it is not within the scope employment, of his amusement, his 'not employer, proprietor of a is place required to nor to take anticipate improbable, measures to no reasonable prevent happening which person would have does not expected.’ petition [Cits.]
196 conceive, in allege, reason cannot what manner alleged facts here be connected might possibly with the rather than be deemed to personal and, so, employee; being the master cannot be held Community liable for such acts.” v. Bentley, Theatres Co. 632). 303, App. SE2d See Falls v. Jacobs (2) (31 Pharmacy 547, 549 71 Ga. App. SE2d cited. cases
2. As to the second there an ruling, issue of fact as to whether Georgia Power Compаny through its proper 17, authorities had on October of facts knowledge that James circumstances sufficient it on notice put A. Smith had acts, committed immoral or that relationship supervisor-employee between Smith and Wiley Mrs. would likely result in some such act as that alleged have happened. Eavenson, J. Dwight his affidavit 12,1974, of June submitted by Mrs. inWiley opposition to the Power Company’s motion for summary judgment, stated that he was a District Sales Supervisor for the Power Company offices, at its Gainesville prior 17,1972 to October three female employees had told him of Smith, molestations by James asked him to give them protection and to be sure they were not left alone in the office Smith, and that Mrs. Wiley "had come to (3) him (4) personally within a period three or four months prior 17, to October 1972 and requested that she not be left alone the office with James A. Smith.” The ruling by trial court that there was no question fact as to erroneous, this issue was alone would standing preclude а summary Code Ann. judgment. 81A-156; Sanders v. Alpha &c., Gamma Alumni Chapter 545); Bankers Fidelity Ins. Life O’Barr, Co. v. Assuming arguendo Company did fact have Smith’s amoral amorous pro- pensities toward attractive co-workers, female er- any ror as previous to the ruling was purged by the further ruling that Wiley Mrs. herself had actual knowledge, according her own Eavenson, affidavit as well as that of of the prior alleged immoral acts and the immoral propensities of her co-employee, before the allеged incident of October yet she continued to work *9 conduct of the immoral If knew complainant with him. the co-worker, not have she should of propensities into such coming him after with working continued knowledge. care the ordinary to exercise is bound
"The master servants, knowledge not retain them after selection of "In for injuries § Code 66-301. suits of incompetency.” failing of the master negligence from the arising 66-301, by duties section imposed comply with that recover, appear it must may the servant order that of the in- the master knew or to have known ought . . . and it must also competency of the other servant and had not did not know injured that the servant appear the exercise of fact, by means such equal knowing (Emphasis thereof.” ordinary care could not known § 66-303. Code supplied.)
"A of a injured by negligence servant machines fellow-servant who had a to start 'Propensity after several they stopped,’ thereby nearly killing were (which propensity the servants on occasions previous injured known to the and to the results were master servant), master, is not entitled to recover damages one retained in although negligent after the injury complained (Emphasis supplied.) of.” Smith v. "If the Sibley Mfg. plaintiff knew that Benson an inefficient servant, in the he should not have negligent engaged him, same service he any more than should work with a defective tool him his Smith v. given by employer.” Sibley, 85 Ga. supra. for the ordinarily a master is not liable
Although (Code 66-304), servant in a negligence proper of a fellow case a servant recover of the for an may injury master occasioned the act of a by fellow servant. servant, however,
"It is incumbent injured where the is a railroad to show except employer company, first, facts: that the fellow servant was following second, incompetent; injury complained that directly proximately incompetency; resulted or from such (a) third, of such either the master knew (b) care ordinary the exеrcise incompetency, by it; fourth, injured he could have known of that the servant fifth, not know of such incompetency; (the servant) exercise of care ordinary injured he could not it; and, sixth, have known of that he did not have equal means with the master acquiring knowledge such fact. [Cit.]
"In such a case there is but one of care degree law, prescribed by namely, 'ordinary’ care, and that de of care gree prescribed alike for the master and for the If servant. care, mаster has exercised such and has neither nor employed retained the alleged incompetent servant with of such he is not incompetency, *10 liable. hand, On the other if the injured servant knew of such incompetency, by the exercise ordinary care could it, known of or had equal means with the master for it, knowing but nevertheless continued in the master’s employ and sustained an injury as he can alleged, recover, even though it appear the master knew or ought have known sеrvant's incompetency.” fellow (Emphasis Camilla supplied.) Cotton Oil &c. Co. v. Walker, 21 (3), Ga. 603 855); SE Newman v. Co., (144 Foundry &c. 386); SE Griffin Atlanta B. Mullis, (159 & C. R. Co. 692, 693 v. 43 Ga. App. 893); Story Co., Crouch Lumber 210, 213 61 Ga. App. 86); Windsor v. Chanticleer & 89 Ga. App. Mrs. Wiley’s own knowledge of her fellow-worker’s sensual proclivity vitiated the alleged knowledge there- of by his employer when she continued to work with him. Actually, was not until after termination of her employment nearly five months following the alleged tortious incident that she felt pangs embarrassment sufficient for the suit.
4. Counsel for Mrs. Wiley as appellant enumerates ten altogether alleged errors, and no citations of law in appear brief, his as was true when the case in was heard court, the trial although he makes on argument the facts. in Ordinarily, such cases the enumerations of errors are (c) deemed abandoned. (2), Rule this court. Code Ann. 24-3618. Those enumerations meritorious of con- sideration are covered by the foregoing opinion, all others are without merit.
I dissent, therefore аnd am authorized to state that joins Clark therein. Judge MURRAY.
50113. ABERCROMBIE v. Judge.
Evans, Samuel a rebuilt van trailer Murray purchased George DeShong. Arkansas from Arkansas, the trailer but Murray get went it in in Illinois. Doug found of one Caudell possession to the that he claimed title Instead of Caudell telling trailer, rented the trailer right possession, Murray Caudell; from and without Caudell’s knowledge, brought the trailer to Douglasville, Georgia.
Caudell finally located the trailer Douglasville, arrest for Murray’s stealing swore out a warrant for trailer, thе sheriff to seize and take requested possession of the Subsequently, trailer. the sheriff de- livered possession upon of the trailer to Caudell his $10,000. giving bond for stealing
In the criminal warrant serving trailer, whatever to any authority the sheriff was without trailer, authority without seize the was likewise deliver it Caudell bond. The sheriff giving over to his *11 as a respect seems to have treated the warrant action, or bail-trover which it was not. possessory warrant filed in trover Claude Ab- Murray against suit ercrombie, Jr., County. Sheriff оf The sher- Douglas as iff or plaintiff’s ownership right possession, denied which plaintiff partial summary judgment moved for motion the lower court was denied. This court affirmed Abercrombie, Murray v. by jury. be decided
holding questions raised should and verdict was jury, The case was then tried before a sheriff, moved rendered for the who plaintiff against trial was denied and the for new trial. Motion for new sheriff Held: appeals. trover, either title
1. In must show commenced, prior himself at the time the suit was Sellers, Sellers possession, right possession.