Opinion
34677.
DECIDED JULY 14, 1953.
Action for damages. Before Judge Paschall. Bartow Superior Court. March 27, 1953.
Dudley Cook, Lewis Lewis, for plaintiff in error.
MacDougald, Troutman, Sams Schroder, Neel Ault, contra.
1. The specific averments of the first count of the petition show that the employee of the defendant railroad company was not acting in the prosecution and within the scope of the railroad's business at the time he shot and killed the plaintiff's husband.
2. The second count of the petition set out a cause of action, based on the defendant railroad company's negligence in retaining in its employment as a detective and investigator and in furnishing a pistol to one who was known to the employer to be of a violent and ungovernable disposition with a propensity to assault others without cause, and who without provocation shot and killed the plaintiff's husband after going to his house to obtain information about an applicant for employment with the defendant railroad company.
3. The court did not err in sustaining the defendant railroad company's general demurrer to the first count of the petition, but should have overruled its demurrer to the second count.
DECIDED JULY 14, 1953.
Mrs. Rose Marguerite Pope brought an action for damages against Seaboard Air Line Railroad Company and J. R. Davis in Bartow Superior Court. Her petition was in two counts, and the allegations of the first count are substantially as follows: The plaintiff is the widow of Raymond Pope, who came to his death by reason of the wrongful acts of the defendants on December 1, 1951, in Bartow County, Georgia. The plaintiff's husband was employed by the defendant railroad company as a flagman at the time of his death, and on the night of December 1, 1951, the defendant Davis went to Cartersville, Georgia, and to the home of the plaintiff and her husband on the defendant's business and within the scope of his employment as an investigator and detective. Davis sought information from the plaintiff's husband about a person who had applied for a job with the railroad company and who was under investigation by the defendant and its agent, Davis. Davis was making a routine investigation. The plaintiff's husband drove him to a hotel in Cartersville and, after parking Davis's car in front of the hotel, went around to assist Davis into the hotel, but Davis pulled out his gun and shot and killed the plaintiff's husband, without provocation or justification. Davis was then acting for and on behalf of the defendant railroad company and within the scope of his employment. He had come to the plaintiff's home to make inquiry of her husband and to find out what information the plaintiff's husband could give him concerning an applicant for employment with the defendant railroad company. Davis was unable to drive his car back to the hotel where he was staying, and it became necessary for the plaintiff's husband to drive him back to his hotel. There was no altercation or fight between the plaintiff's husband and Davis. Davis was employed by the defendant railroad company as a detective and investigator with headquarters in Atlanta, Georgia, and he traveled from city to city in an automobile with his expenses of travel, room and board being paid by the defendant railroad company when he was away from Atlanta. On December 1, 1951, the defendant Davis was on a business trip on behalf of his employer. He left Cedartown in the morning and went to Rockmart and to Taylorsville and then to Cartersville. Davis had no definite hours in which to perform his duties of investigating for the defendant railroad company, and his visit to the home of the plaintiff's husband was at night. The shooting occurred after the plaintiff's husband had driven Davis to the hotel where he was to spend the night before returning to Atlanta to make his report. Before Davis got out of the car parked in front of the hotel, he killed the plaintiff's husband. It was Davis's further duty in connection with the investigation made in Cartersville to return to Atlanta and to make a report to the defendant railroad company, which had instructed Davis to make the Cartersville investigation, and the trip to Cartersville was made by Davis for that purpose and pursuant to instructions given him by his employer.
In the second count of her petition, the plaintiff alleged as follows: J. R. Davis was a man of violent and ungovernable disposition, having a propensity to bully, assault, and injure others without cause. The defendant railroad company through its agents had full knowledge of the dangerous and violent temper of the defendant Davis. Davis was a chronic alcoholic and stayed constantly under the influence of alcohol, during which times he was particularly violent and ungovernable, and he assaulted and picked fights with others. All of this was well known to the defendant railroad company and its agents. Despite its knowledge of the dangerous and violent character of Davis, of his drinking habits, and of the fact that he stayed constantly under the influence of alcohol, the defendant railroad company continued to retain Davis as an employee and to send him out to investigate for them, arming him with a pistol and knowing he would carry this pistol about his person. The death of the plaintiff's husband (under circumstances as set out in the first count) was caused by the wrongful, unprovoked assault, and shooting by Davis jointly with the wrongful acts of the defendant railroad company in continuing to employ Davis, who was known to be a violent and dangerous person, in the capacity of a detective, arming him and permitting him to carry a dangerous weapon about his person after knowing of his vicious propensities and after knowing that he drank intoxicating liquors and frequently became intoxicated while carrying the weapon authorized and furnished by the defendant railroad company when Davis was doing detective and investigation work for it. Davis was employed as a detective under the immediate supervision and direction of the Supervisor of Property Protection, L. L. Collins, and the defendant railroad company through its agent Collins had knowledge of the fact that Davis customarily carried a pistol while performing his duties, as well as knowledge of his constant drinking while on duty and of his vicious propensities as described.
Both counts were brought for the full value of the life of the plaintiff's deceased husband. The general demurrers of the defendant railroad company to both counts of the petition were sustained, and the petition was dismissed as to that defendant, and the plaintiff excepted.
1. Code § 105-108 provides as follows: "Every person shall be 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." As construed in Frazier v. Southern Ry. Co., 200 Ga. 590, 593 ( 37 S.E.2d 774), "The word `voluntary' in § 105- 108 will cover any or all motives or purposes of the wrongdoer, acting in the scope of his employment, which are not covered by `acts of negligence.' 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. If the tort be committed, not by reason of the employment, but because of matters disconnected therewith, the master would not be liable." As stated in Southern Railway Co. v. James, 118 Ga. 340, 344 ( 45 S.E. 303, 63 L.R.A. 257), "If the criminal act of the servant was done within the range of his employment and for the purpose of accomplishing the authorized business of the master, the latter is liable."
In the present case, it is alleged that Davis, while employed as a detective and investigator by the defendant railroad company, went to the plaintiff's house at night on the railroad's business, to make a routine investigation of an applicant for a job. For reasons which are not alleged, Davis was unable to drive back to the hotel where he was staying, and it became necessary for the plaintiff's husband to drive him back. The plaintiff's husband parked Davis's ear in front of the hotel and went around the car to assist Davis into the hotel. Before Davis got out of the car, he shot the plaintiff's husband, and was then "acting for and on behalf of his employer . . . and within the scope of his employment." No altercation or fight had taken place.
It appears that Davis became so incapacitated that he was unable to drive his car back to the hotel and required assistance to get out of his car when he got there. Apparently he was able to drive to the plaintiff's house. These facts plainly show that Davis's mission for his employer, to acquire information about a job applicant, had either been accomplished or could be pursued no further by the time Davis shot the plaintiff's husband, and that the shooting was not done in the prosecution of any railroad business. Although Davis was alleged to have been employed as a detective and investigator, there was nothing in the nature of his transaction with the plaintiff's husband which would require the use of force, and it is not shown how the use of a pistol had any connection with the business which Davis had transacted with the plaintiff's husband. See Ford v. Mitchell, 50 Ga. App. 617 (2) ( 179 S.E. 215); Georgia Power Co. v. Shipp, 195 Ga. 446 ( 24 S.E.2d 764).
It is contended that the shooting of the plaintiff's husband was done within the scope of Davis's employment, as his employment was general in nature, his hours of work were indefinite, and he traveled from place to place on an expense account. But the question is not whether the tort occurred during the time of Davis's employment; it is whether the wrongful act, at the time of its commission, was so closely connected with an authorized transaction that the act may be said to have been done in the prosecution of the employer's business and not as an act wholly personal to the employee. Plumer v. Southern Bell Tel. c. Co., 58 Ga. App. 622 ( 199 S.E. 353); Falls v. Jacobs Pharmacy Co., 71 Ga. App. 547 ( 31 S.E.2d 426). There is no such connection shown here; but the specific averments of the petition show that Davis was not, when he shot the plaintiff's husband, acting in the prosecution and within the scope of the railroad's business.
2. The second count of the petition is not brought on the theory that an employer is liable for torts committed by its servant while in the prosecution of the employer's business, but is brought on the basis of the employer's negligence in retaining in its employment and furnishing a pistol to an employee who was of a violent and ungovernable disposition, with a propensity to assault others without cause, and who was a chronic alcoholic, constantly under the influence of alcohol and frequently intoxicated, the employer having knowledge of these traits. The allegations of Davis's alcoholism must be disregarded, for the pleader has studiously avoided making any allegations that Davis had been drinking or was under the influence of alcohol when he shot the plaintiff's husband; and the employer's liability in this respect is limited to those consequences flowing directly from the known incompetence or bad character of its servant. Camilla Cotton Oil c. Co. v. Walker, 21 Ga. App. 603 (9) ( 94 S.E. 855); Parry v. Davison-Paxon Co., 87 Ga. App. 51, 56 (3) ( 73 S.E.2d 59).
If, as alleged, the defendant railroad company had knowledge of Davis's character and disposition to assault others without cause, but nevertheless retained him as an armed detective and investigator, a jury might find that the railroad had good reason to anticipate and apprehend that Davis would conduct himself in the manner alleged while making his investigations. It is alleged that Davis was on his employer's business when he called upon the plaintiff's husband, and this contact in line of business would authorize a jury to consider the subsequent shooting as a result of Davis's employment by the defendant railroad company. Although the plaintiff's husband is alleged to have been employed as a flagman by the same railroad, it appears that he was off duty and so was not a fellow-servant of Davis; and while it is not alleged that he was unaware of Davis's propensities, neither is it alleged that the deceased had knowledge of his character. It was Davis who came uninvited to the plaintiff's house on railroad business, and so it would be for a jury to say whether or not the plaintiff's husband could have avoided being shot by him.
As stated in Christian v. Columbus c. Ry. Co., 79 Ga. 460, 462 ( 7 S.E. 216): "But this declaration alleges that the railroad company employed him knowing of his infirmity, and that, of course, subjects the company to the consequences, if it be true. Their employment of an improper person to come in contact with the public as their agent, would be gross misconduct." And it was ruled in Renfroe v. Fouche, 26 Ga. App. 340 (3) ( 106 S.E. 303): "Where a servant departs from the prosecution of his business and commits a tort while acting without the scope of his authority, the person employing him may still be liable if he failed to exercise due care in the selection of his servant." Also see, in this connection, Savannah Electric Co. v. Wheeler, 128 Ga. 550, 562 (3) ( 58 S.E. 38, 10 L.R.A. (N.S.) 1176); Estridge v. Hanna, 54 Ga. App. 817 (2) ( 189 S.E. 364); Henderson v. Nolting First Mortgage Corp., 184 Ga. 724 (2) ( 193 S.E. 347, 114 A.L.R. 1022); Elrod v. Ogles, 78 Ga. App. 376, 384 (2 b) ( 50 S.E.2d 791); Code § 66-301. The second count of the petition set out a cause of action against the defendant railroad company.
3. Accordingly, the court did not err in sustaining the general demurrer of the defendant railroad company to the first count of the petition, but should have overruled the railroad's general demurrer to the second count.
Judgment affirmed in part and reversed in part. Felton and Worrill, JJ., concur.