Summary
In Parry v. Davison-Paxon Co., 87 Ga. App. 51, 55 (2) (73 S.E.2d 59) (1952) this court held " `Where the employee was acting exclusively for himself and was not acting at all for the master, and did not profess to be acting for the employer, the mere retaining of the servant after knowledge of his tort would not constitute ratification binding the master.
Summary of this case from Rubin v. Mikart, Inc.Opinion
34132.
DECIDED SEPTEMBER 13, 1952. REHEARING DENIED OCTOBER 17, 1952.
Action for damages; from Richmond Superior Court — Judge Kennedy. May 8, 1952.
Paul T. Chance, Winfield P. Jones, for plaintiff in error.
Hull, Willingham, Towill Norman, contra.
The trial court did not err in sustaining the general demurrer and dismissing the plaintiff's petition.
DECIDED SEPTEMBER 13, 1952 — REHEARING DENIED OCTOBER 17, 1952.
Mrs. Vaughn T. Parry sued Davison-Paxon Company in the Superior Court of Richmond County for damages and alleged substantially as follows: The defendant, a corporation, owns and operates many large department stores, and operates in connection with its business, delivery motor trucks, and makes deliveries of goods and merchandise sold at the stores. The plaintiff, on an afternoon between the hours of one and two, had undressed and was asleep in the bedroom in the rear of her home. At that time the plaintiff was awakened by an unusual noise coming from her living-room in the front of her home. The noise continued for some minutes while she was dressing. Upon leaving her bedroom she walked up to the living-room and upon reaching the door of the living-room she saw two large negro men standing within a few feet of her. She realized that the two negro men had forced their entrance into her home, and that their obvious purpose was either to rob her home or commit some grave offense against her person. All of the doors to the plaintiff's home had been locked before she retired. The plaintiff was so frightened, alarmed and upset by the presence of the two negro men, that she fainted and would have fallen to the floor except for the fact that the two negro men thereupon left her home hastily through the front door. The plaintiff had securely locked the front door before she retired, and the two negro men had forced their way through the door by the use of some metal bar, all of which appears from the scraped and torn woodwork on the door and the facing of the door. The two negro men were at the time employees of the defendant, and were driving one of the defendant's trucks to deliver goods sold by the defendant, in the course of and within the scope of their employment. The plaintiff is advised and alleges that the defendant had sold, and its two employees were delivering, a small mahogany table to one L. R. Jones or his wife, residing at 2342 Franklin Street. In leaving the plaintiff's home the two employees left the table, which bore a tag which had printed thereon the name and address of the defendant and the name of L. R. Jones and his address. The employees were using the table as a pretext and scheme to vindicate and exculpate them in their unlawful acts in entering the plaintiff's home, in case they happened to be caught and apprehended. The defendant was on said day duly informed of the criminal acts of its employees, and the manager stated that he would promptly take action against the employees, and that he would see that justice was done. Neither the defendant nor its manager has taken any action, and the two negro men are still retained as employees. The defendant by its non-action is seeking to justify the unlawful acts, in its effort to avoid liability in the case. On the day of the commission of the unlawful acts by the employees, the defendant was fully informed of their conduct, but the defendant has condoned and ratified the unlawful acts. On said date and at the time of employing the two truck drivers, the defendant knew that they were wholly unreliable criminal characters, and that they were likely to commit said acts, or by the exercise of ordinary care and diligence the defendant could have easily ascertained their unreliable character. The defendant was guilty of gross negligence in employing the two truck drivers, and in retaining them, both before and after the commission of the unlawful acts. At the time the defendant's employees forced their way into the plaintiff's home, she was pregnant and in a very delicate condition, and the acts and conduct of the defendant, acting by and through its employees, caused the plaintiff to suffer a complete nervous collapse from which she has never recovered. The plaintiff has suffered, and will continue to suffer great mental torture, which has seriously affected her health and well-being. She is now advised that she may have a miscarriage as the result of the acts and conduct of the defendant, acting by and through its employees. The plaintiff has been damaged by the defendant in the just and full sum of $10,000 and claims exemplary damages in the sum of $2500.
The defendant demurred generally and specially to the petition. The grounds of the general demurrer are as follows: (1) the plaintiff's petition sets out no cause of action against this defendant; (2) it shows on its face that even if the alleged acts of the defendant's employees were proved to be true, the acts would be outside the scope of their employment by this defendant and this defendant would not be legally liable for such acts of its agents; (3) it shows on its face that no physical injury was caused by the acts of the defendant's employees such as would authorize an action in tort by the plaintiff as against this defendant; and (4) it shows on its face that the defendant's employees were guilty of no act of negligence for which the defendant would be liable.
The demurrer was sustained on the general grounds and the petition dismissed. To this judgment the plaintiff excepted.
1. In Falls v. Jacobs Pharmacy Co., 71 Ga. App. 547 ( 31 S.E.2d 426), the plaintiff, a former employee of the defendant, who was at the time of the alleged injury employed by Walgreen Company, sought to hold the defendant liable for the action of one of its store managers who allegedly accosted her in the store "in a voracious and abusive manner," loud enough to be heard throughout the store, demanded to know what she was doing in the store, and thereupon unceremoniously pushed her to the door and out of the door, telling her to go to Walgreen's store where she belonged, and to stay away from Jacobs Pharmacy. In affirming the judgment of the trial court in sustaining the defendant's general demurrer this court held, on page 549, as follows: "1. The doctrine of respondeat 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." "The true test is not whether the tort was committed by reason of anger, malice or ill will, but whether or not it was committed in the prosecution and within the scope of the master's business." Frazier v. Southern Railway Co., 200 Ga. 590, 593 ( 37 S.E.2d, 774). Construing the allegations of the petition most strongly against the pleader, they show that the alleged acts were outside the scope of the employment of the two truck drivers. The petition alleges that the employees unlawfully and criminally forced their way into the plaintiff's home for the purpose of committing an unlawful act, to with, either to rob the plaintiff or to commit some grave offense against her person. The employees were not acting in furtherance of their master's business, but were acting outside of the scope of their employment, hence the petition does not set forth a cause of action under the doctrine of respondeat superior.
2. "By ratification of a tort committed for one's benefit, the ratifier becomes liable as if he had commanded it; otherwise if the act was done for the benefit of a third person." Code § 105-109. Here, the allegations of the petition show that the defendant's two employees had departed from the prosecution of the master's business and begun a separate scheme of their own, from which no benefit could possibly inure to the master. "Where the employee was acting exclusively for himself and was not acting at all for the master, and did not profess to be acting for the employer, the mere retaining of the servant after knowledge of his tort would not constitute ratification binding the master." Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117 (3) ( 185 S.E. 147). In the same case, on pages 119 and 120, the court held as follows: "He was acting solely for himself; and `there is no such thing as a master assuming, by ratification, liability for an act of another in which the master had no part.' Knight v. Laurens Motor-Car Co., 108 S.C. 179 ( 93 S.E. 869. L.R.A. 1918B, 151). `There can, of course, be no ratification unless the act was done for the master, or at least purported to be done for him.' 39 C. J. 1266, § 1448." Accordingly, the petition set forth no cause of action against the defendant on the grounds of condonation and ratification of the acts of the defendant's employees.
3. The plaintiff amended her petition by adding an additional allegation of negligence as follows: "That on said date and at the time of employing said two truck drivers the defendant knew that they were wholly unreliable criminal characters and that said employees were likely to commit said acts, or by the exercise of ordinary care and diligence the defendant could have easily ascertained the unreliable character of the said two employees; that the defendant was guilty of gross negligence in employing said two truck drivers and in retaining them in its employ both before and after the commission of the unlawful acts aforesaid." No previous record or prior acts of these two employees on which to base this allegation are shown. "The selection of incompetent servants is such an act of negligence as will authorize a cause of action in favor of any person who is injured as the direct and proximate result thereof. See Code, § 66-301; Renfroe v. Fouche, 26 Ga. App. 340 (3) ( 106 S.E. 303); Estridge v. Hanna, 54 Ga. App. 817 (2) ( 189 S.E. 364)." Elrod v. Ogles, 78 Ga. App. 376, 384 ( 50 S.E.2d 791). The allegations of the petition show that the two employees did not gain admittance to the plaintiff's home on the basis that they were employees of the defendant, that the fact that they were employed by the defendant did not operate in any way to bring about the injuries complained of, that the same acts could have been performed by any two persons without regard to their employment, and that the alleged negligence of the defendant in hiring the employees was not the proximate cause of the injuries complained of. Thus, the petition sets forth no cause of action on the ground of negligence of the defendant in employing the two truck drivers.
4. The trial court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. Sutton, C.J., and Felton, J., concur.