Opinion
30586.
DECIDED SEPTEMBER 13, 1944.
Action for damages; from Fulton superior court — Judge Paul S. Etheridge. April 10, 1944.
A. E. Wilson, for plaintiff.
Hirsch, Smith, Kilpatrick, Clay Cody, Sidney Haskins, for defendant.
1. There is no liability on the part of the master arising from the mere relationship of master and servant. A petition against the master for a tort committed by his servant, to be good as against general demurrer, in addition to showing that the relationship of master and servant existed on the occasion in question, must further show that the servant acted by command of the master or that the wrongful act was perpetrated in the prosecution and within the scope of the master's business.
2. Where the petition by its allegations revealed that at the time of the alleged tortious act the servant was wholly disconnected from the master's business and was not acting within the scope of the servant's employment, its dismissal on general demurrer was proper.
DECIDED SEPTEMBER 13, 1944.
The petition of Dorothy Falls against Jacobs Pharmacy Company and Irwin G. Katenbrink alleged that Jacobs Pharmacy Company operated a chain of drug stores in Atlanta, Georgia, and that on the occasion in question Katenbrink was manager and in complete control of the company's business at the place where the acts of which complaint is made occurred; that the petitioner formerly had been employed by Jacobs Pharmacy Company, but at the time of the alleged injury was employed by Walgreen Company, a competitor, located immediately across the street from the store operated by the defendant company; that on the day in question she had finished her day's work at Walgreen's and had gone into the defendant company's store, where her sister was employed, to accompany her sister home; that the defendant Katenbrink knew the petitioner well, and "that after entering said place of business as aforesaid, petitioner, while standing, looking into a show case wherein cosmetics were stored, was accosted by the defendant Katenbrink, who, in a voracious and abusive manner, loud enough to be heard throughout the store, demanded to know what petitioner was doing in said store, and thereupon unceremoniously pushed her to the door and out of said door, telling her to go to Walgreen's store where she belonged, and to stay away from said Jacobs Pharmacy. . . Petitioner avers that at the time of this unprovoked and uncalled for assault by said defendant, as aforesaid, there was a large number of customers in said store, whose names are unknown to petitioner, all of which added to the humiliation and chagrin inflicted upon petitioner by reason of the acts of said defendant. . . Petitioner avers that prior to August 10th, 1943, she was in the employ of said defendants at said store located as aforesaid; that after leaving the employ of said defendants her said sister was employed by them, and as a result she was frequently in said store to see her sister, and also for the purpose of accompanying her to their home as was well known to the manager of the said store, the said Katenbrink, and no suggestion has even been made to her that her presence in said store was undesirable. . . Petitioner charges that her demeanor in the said store offered no justification for being subjected to the attack made upon her by said defendant; that same was made spitefully and with the deliberate purpose and intention of humiliating and degrading petitioner. . . She further avers that no one ever questioned, nor has there been any occasion to question her character, or veracity, and that as a natural consequence the unseemly conduct of the defendants toward her has been a source of untold humiliation and embarrassment to her." For these alleged injuries the petitioner sought damages. The defendant Katenbrink filed no demurrer. Jacobs Pharmacy Company filed a general demurrer, which was sustained, and error is assigned on that judgment.
1. The doctrine of respondent superior in this State is contained in the provisions of the Code, § 105-108, which reads as follows: "Every person shall be liable for torts committed by his wife, his child, or 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." Thus it will be seen that 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. Lewis v. Amorous, 3 Ga. App. 50; Louisville Nashville R. Co. v. Hudson, 10 Ga. App. 169; Broome v. Primrose Tapestry Mills, 59 Ga. App. 70.
2. There is a long line of decisions to the effect that if the servant steps aside from his employment and acts without the scope of his master's business, and commits a tort, the master is not liable. Henderson v. Nolting First Mortgage Corp., 184 Ga. 724 ( 193 S.E. 347, 114 A.L.R. 1022); Georgia Power Co. v. Shipp, 195 Ga. 446; Savannah Electric Company v. Hodges, 6 Ga. App. 470; Smith v. Seaboard Air-Line Ry., 18 Ga. App. 399; Southeastern Fair Association v. Wong Jung, 24 Ga. App. 707; Daniel v. Excelsior Auto Co., 31 Ga. App. 621; Atlanta Baseball Co. v. Lawrence, 38 Ga. App. 497; Heath v. Atlanta Beer Distributing Co., 56 Ga. App. 494; Niebuhr v. Pridgen Brothers Co., 56 Ga. App. 668; Plumer v. Southern Bell Telephone c. Co., 58 Ga. App. 622; Louisville Nashville R. Co. v. Hudson, supra. The allegations of the petition negate the essential fact necessary to hold the master liable for the tortious acts of the servant, for the allegations clearly show that the assault was not committed in furtherance of the master's business, but, rather, clearly show the affair to be a personal matter between the manager and the plaintiff. Counsel for the plaintiff in error cite but one decision on which he bases his contention for a reversal of this case. This is Southern Grocery Stores v. Keys, 70 Ga. App. 473 ( 28 S.E.2d 581). The facts in that case are entirely different from the allegations in the instant case. The Keys case is based on the principle that one operating a mercantile establishment owes a duty to his customers to protect them from unlawful assault by the employees. The occasion of the plaintiff's visit to the defendant's place of business in the instant case was not as a customer. Her purpose for going there was entirely unassociated with the business of Jacobs Pharmacy Company. The defendant held out no invitation to her to visit its place of business for the purpose for which she alleges she entered it.
The court did not err in sustaining the demurrer and dismissing the petition for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.