Opinion
35327.
DECIDED JANUARY 11, 1955.
Action for damages. Before Judge Moore. Fulton Superior Court. May 26, 1954.
John L. Westmoreland, John L. Westmoreland, Jr., for plaintiff in error.
Martin H. Peabody, contra.
The allegations of the petition were sufficient to show the defendant's liability for the wrongful act of its servant, and the court did not err in overruling the general demurrer thereto.
DECIDED JANUARY 11, 1955.
George Lee Newton brought suit against Candace, Inc., for damages on account of personal injuries alleged to have been sustained under the following circumstances: The defendant owns and operates the Briarcliff Hotel in Atlanta. On March 22, 1952, at approximately five o'clock in the morning, the plaintiff, who was then a registered guest at said hotel, approached the desk in the lobby of said hotel, and the defendant's agent, the night clerk, "then and there furiously, suddenly, with malice, and without any provocation whatsoever, commenced to strike your petitioner a great number of violent blows upon his head and divers other parts of his body with a blunt instrument." Said night clerk was employed by the defendant at said time and place, and was working within the scope of his employment in the defendant's business, with the defendant's knowledge and consent. The assault and battery by the defendant's night clerk rendered the plaintiff unconscious, he suffered a cut in his scalp, his teeth were knocked loose and badly chipped, and he was taken to a hospital for treatment. As a direct result of the assault and battery by the defendant's agent, the plaintiff has suffered and will continue to suffer pain, dizzy spells, and double vision.
The defendant filed a general demurrer to the foregoing allegations of the petition, the demurrer was overruled, and the case is before this court upon exceptions to that ruling.
Code § 105-108 holds every person liable for torts committed by his servant, "by his command, or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary."
The allegations of agency in the instant case clearly fall within the rule laid down in Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 (3) ( 58 S.E.2d 559). As will be seen from the foregoing statement of facts, the plaintiff alleged by "a simple direct statement the fact that the wrongful act was the act of the defendant's servant and was committed in the prosecution of the principal's business and within the scope of the employee's authority," and this is not subject to general or special demurrer.
The petition sets out a general allegation of agency, and is distinguishable from the petitions considered in Community Theatres Co. v. Bentley, 88 Ga. App. 303 ( 76 S.E.2d 632), and in Laughlin v. Bon Air Hotel, 85 Ga. App. 43 ( 68 S.E.2d 186), in that no special averments are set out which negate the general allegation of agency. Whether or not the defendant's night clerk at the time of the assault complained of was acting within the scope of his employer's business, is a question for a jury. See Central of Ga. Ry. Co. v. Brown, 113 Ga. 414 (1) ( 38 S.E. 989, 84 Am. St. R. 250), and Frazier v. Southern Ry. Co., 200 Ga. 590 ( 37 S.E.2d 774).
The petition sets out a cause of action, and the court did not err in overruling the general demurrer.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.