Opinion
30786.
DECIDED APRIL 6, 1945. REHEARING DENIED MAY 10, 1945.
Action for damages; from Fulton superior court — Judge Hooper. December 18, 1944.
W. George Thomas, for plaintiff.
Sol I. Golden, John T. Ferguson, and G. B. Tidwell, for defendants.
The petition did not state a cause of action against the defendant corporation based on the alleged wilful misconduct of Hall, but did state a cause of action based on the alleged misconduct of Hancey and Chapman.
DECIDED APRIL 6, 1945. REHEARING DENIED MAY 10, 1945.
S. B. Morgan brought an action in the superior court of Fulton County, against S.C. Johnson Son Inc., Harvey J. Chapman, and J. D. Hall to recover damages in the sum of $20,000 for an alleged assault and battery. His petition sets forth substantially the following allegations. He was employed at the Henry Grady Hotel as chef. On or about February 1, 1943, and the previous day S.C. Johnson Son Inc. (hereinafter referred to as the corporation) was holding and sponsoring a meeting for all of its sales and other representatives in the State of Georgia and the other southeastern States at the Henry Grady Hotel. During this meeting and in pursuance and in furtherance of the business of the corporation, the corporation arranged for a dining room at the Henry Grady Hotel for the evening of February 1, 1943, for the purpose of holding a further conference in connection with its business, and for serving a meal at the same time to its representatives. The defendant Chapman and a factory representative, Hancey, acting for and in behalf of the corporation, arranged with the headwaiter for a steak dinner to be served, though such arrangements were customarily made with the petitioner. On the evening of February 1, 1943, at about 9 p. m., the waiters commenced serving the dinner to the representatives of the corporation, and the meal consisted, among other things, of a filet mignon steak. The factory representative, Hancey, who with Chapman, had made the arrangements on behalf of the corporation, complained to the headwaiter that he had ordered a T-bone steak, and after some discussion the waiter sent for the petitioner who came to the table and conferred with Hancey, explaining to him that the dinner was not ordered very far in advance and that there were no T-bone steaks available, whereupon the headwaiter stated that this fact had been explained to Hancey and Chapman at the time the order was placed. The defendant Hall thereupon came around the table in a threatening manner, whereupon the petitioner explained to those present that it was the desire of the hotel that its customers be satisfied, and that if the steaks were not satisfactory at the price charged, a reduction in price would be made, whereupon Hall stated that he was going to knock hell out of the petitioner and started toward him. The petitioner appealed to Hancey and Chapman to stop Hall and prevent trouble as he had done nothing to justify such conduct. Hancey, the agent, servant, and employee in charge, and Chapman both laughed, and did nothing to interfere with Hall, who came around the table and struck the petitioner, knocking him over a chair and fracturing certain of his vertebrae. Hancey, Chapman, Hall, and the other representatives were under the influence of liquor, but Hancey and Chapman could have prevented the assault and battery; on the contrary they failed and refused to do so, and, moreover, after the petitioner had been struck, they joined in, and themselves pushed, shoved, and struck the petitioner, further injuring his back, which had already been fractured, and these defendants, individually, kicked him on the leg and struck him in the eye, breaking his glasses and cutting him below the left eye. As a result, his injuries received thereby have caused him great anguish and pain, and it has been necessary for him to expend rather large sums for the services of a physician and for medical expenses, and he has been unable fully to perform the duties expected of him in his employment for several months, and he will be forced to expend other large sums in the future for medical attention and expenses. The defendants filed general and special demurrers to the petition, and the general demurrer was sustained as to the defendant corporation, and since the defendants Chapman and Hall were not residents of Fulton County, as to them the action was dismissed. Morgan assigns error on the ruling of the court sustaining the general demurrer.
The petition does not set out such a cause of action as to make the defendant corporation, S.C. Johnson Son Inc., liable for the tort of Hall. Hall was merely a guest at the dinner and was in no way concerned with the duties of arranging the dinner or seeing that the arrangements were carried out. These were the duties of Hancey and Chapman. Hall's complaint was purely personal and concerned only with his individual steak. There is no allegation that Hall was authorized to act for and in behalf of the corporation or that he assumed to do so. In the absence of this essential allegation, and construing the petition most strongly against the plaintiff ( Krueger v. MacDougald, 148 Ga. 429, 96 S.E. 867), we must assume that Hall was acting in an individual capacity against the plaintiff, and under these circumstances there can be no ratification of his acts by the corporation. The doctrine of ratification is not applicable against a principal as to the act of a third person who did not assume to act in the name of or under the authority of the principal. Thompson v. Brown, 121 Ga. 814 ( 49 S.E. 740); Florida Midland Georgia R. Co. v. Varnedoe, 81 Ga. 175 ( 7 S.E. 129); Morgan v. Georgia Paving Construction Co., 40 Ga. App. 335 ( 149 S.E. 426); Swicord v. Waxelbaum, 23 Ga. App. 297 ( 97 S.E. 891). The law is so well settled that a principal is liable for a tort committed by his agent in the business of the principal and within the scope of the agent's employment as to require no citation of authority to support it. The question is, do the allegations of the petition now under consideration make out such a case of liability against the defendants under the application of the established doctrine as to withstand demurrer? The petition alleges that in arranging for the dinner which the plaintiff was to prepare, Hancey, a factory representative, and Chapman, another employee, were acting for and in behalf of the defendant S.C. Johnson Son Inc.; and even after construing the petition most strongly against the plaintiff ( Krueger v. MacDougald, supra) the inference is permissible that if Hancey and Chapman were acting within the scope of their employment in arranging the dinner, it was their duty to see that these arrangements were executed effectually and satisfactorily. The petition shows that Hancey, the agent, servant, and employee in charge of the defendant corporation's dinner, entered into a discussion with the headwaiter concerning the type of steak which was being served which resulted in the petitioner's being called to explain why filets mignons instead of T-bone steaks were being served. During this discussion, Hall, another representative of the defendant corporation, present at the dinner as a guest, entered into an altercation with the plaintiff which resulted in an assault and battery by Hall upon the plaintiff in which Hancey and Chapman joined and took part. Under the allegations of the petition we are of the opinion that at least it was a question for the jury whether or not Hancey and Chapman were acting within the scope of their employment in attacking the plaintiff, and that the court erred in sustaining the general demurrer thereto. Planters Cotton-Oil Co. v. Baker, 181 Ga. 161 ( 181 S.E. 671), and cit.; Winoker v. Warfield, 136 Ga. 742 ( 71 S.E. 1051); American Security Co. v. Cook, 49 Ga. App. 723 ( 176 S.E. 798); Gomez v. Great Atlantic Pacific Tea Co., 48 Ga. App. 398 ( 172 S.E. 750); Personal Finance Company v. Whiting, 48 Ga. App. 154 ( 172 S.E. 111); Atlanta Hub Co. v. Jones, 47 Ga. App. 778 ( 171 S.E. 470); Friedman v. Martin, 43 Ga. App. 677 ( 160 S.E. 126); Seaboard Air-Line Railway Co. v. Arrant, 17 Ga. App. 489 ( 87 S.E. 714); Century Building Co. v. Lewkowitz, 1 Ga. App. 636 ( 57 S.E. 1036).
Judgment reversed. Sutton, P. J., and Parker, J., concur.