In Taff v. Life Insurance Co. of Georgia, 77 Ga. App. 839 (50 S.E.2d 154), it was expressly pointed out that the facts differed from the Schwartz case in that it was not alleged that the agent was engaged in his master's business.Summary of this case from Colonial Stores Inc. v. Sasser
DECIDED NOVEMBER 6, 1948.
Action for damages; from Floyd Superior Court — Judge Porter. April 13, 1948.
W. T. Maddox, Henry J. Fullbright, for plaintiff.
M. G. Hicks, J. Lon Duckworth, for defendant.
"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." Falls v. Jacobs Pharmacy Co., 71 Ga. App. 547, 549.
DECIDED NOVEMBER 6, 1948.
This case is here assigning error on the judgment sustaining a general demurrer. H. F. Taff brought his petition against Life Insurance Company of Georgia, an industrial insurance company, and Cecil Alred, as agent. The plaintiff is an agent of the Independent Life and Accident Insurance Company, also an industrial insurance company. In paragraph 7 of the petition it is alleged that the territory of the agent for the Life Insurance Company of Georgia included South Rome, Georgia, and that it was the agent's duty to sell as much of the insurance as possible in the territory and to collect premiums therefor. Paragraph 8 of the petition alleged that the employer of Alred shared in the proceeds of such sales, and it was to the pecuniary advantage of the employer for the agent to sell as many policies as possible. In paragraph 9 of the petition it was alleged that the plaintiff's territory embraced the same as that of Alred for his company. Other material paragraphs of the petition read: "10. That petitioner's territory for said Independent Life and Accident Insurance Company is substantially the same as is the territory of defendant Alred for the Life Insurance Company of Georgia, and in the course of his work he has made numerous sales of insurance in said territory which otherwise might have been made by an agent of the defendant company.
"11. That there is a considerable competition between the said two companies and numerous other industrial companies in the sale of insurance in Floyd County, and that during the months immediately preceding the date of the assault complained of, defendant Alred and other agents of the defendant company had made false disparaging remarks to prospective customers concerning petitioner and the company he represented in unsuccessful efforts to hinder petitioner's sale of insurance in his territory.
"12. That on June 16, 1947, at about 9:30 a. m., petitioner was making a call on behalf of the Independent Life Insurance Company at an address on Mary Street, in the City of Rome, Ga.
"13. That at said time and in the same general vicinity, defendant Alred was making calls on behalf of the Life Insurance Company of Georgia, and in the course of covering his route he was also searching for petitioner.
"14. That as petitioner left a house on said Mary Street he was accosted by defendant Alred, who was waiting outside and who, without any provocation, assaulted petitioner and inflicted the injuries hereinafter set out.
"15. That J. G. Mann was working the territory with petitioner on behalf of Independent Life Insurance Company at the time of said assault.
"16. That an agent of the defendant insurance company, one `Pop' Tingle, seized and held said Mann at the time of the assault by Alred, and prevented Mann from stopping the affray.
"17. That G. W. Tingle, assistant manager of the local office of said defendant company, and W. P. Latimer, superintendent of the local office of said company, were seated in a parked car a short distance from the assault and witnessed same, but made no effort to prevent it or stop it until petitioner had been brutally beaten about the face and body.
"18. That there had been no personal difficulties between petitioner and defendant Alred prior to the time of such assault.
"19. That petitioner is 33 years old and weighs approximately 135 pounds where defendant Alred is approximately 35 years old and weighs in excess of 200 pounds.
"20. Petitioner shows that defendant Alred struck him in the face with his fist and then held him up to prevent his falling and continued to beat him about the head and face.
"21. Petitioner shows that as a result of said beating both eyes were blackened and he suffered numerous bruises and abrasions about the head and body, and that he suffered from a continuous bloody discharge from his nose for several days thereafter, and was under the care of a physician for several days after the infliction of said injuries, all of which said injuries caused petitioner great physical pain and suffering.
"22. That said assault by defendant Alred was done in the prosecution and within the scope of his employer's business and with the active assistance of another agent for said defendant company, with a voluntary, wilful, wanton and reckless purpose to accomplish the employer's business in an unlawful manner, and was designed solely to intimidate petitioner in the conduct of his lawful business in said territory."
The Life Insurance Company of Georgia filed a general demurrer to the effect that the petition set out no cause of action against it. Alred, the agent of the Life Insurance Company of Georgia, filed no demurrer. The trial court sustained the demurrer of the Life Insurance Company of Georgia, and dismissed the petition as to it.
Counsel for both parties agree that the sole question for this court to decide is whether the allegations of the petition make out such a case against the Life Insurance Company of Georgia as can withstand a general demurrer. Counsel for the plaintiff cite, first, Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549 ( 43 S.E.2d 784). This case holds to the effect that the seller of industrial insurance for a company is its agent. There is no room for argument on this question. The next case on which the plaintiff relies for reversal is Andrews v. Norvell. 65 Ga. App. 241, 245 ( 15 S.E.2d 808). The headnote of that case states: "The proprietor of a saloon is bound to exercise ordinary care and diligence to see that one who enters his saloon as a customer and patron is protected from wilful misconduct and practical jokes which cause bodily harm to the patron and customer, perpetrated by one employed by the proprietor to operate such saloon." We have but to analyze the facts in that case, which we will not do here, to readily discern that the case differentiates itself from the instant case under its facts. The next case relied upon by the plaintiff in error is Brown v. Union Bus Co., 61 Ga. App. 496 ( 6 S.E.2d 388). What we have said with reference to the Andrews case, supra, may with equal propriety be said of the Brown case. The only other case called to our attention by the plaintiff on which is urged a reversal is Schwartz v. Nunnally Co., 60 Ga. App. 858 ( 5 S.E.2d 91). The facts of that case differentiate it from those of the instant case. We see nothing to be gained by an attempt to call attention as to how or wherein the cases above named and on which the plaintiff relies, as the cases under their facts show no cause why the instant case should be reversed under its facts. To anyone interested, the instant case, under the allegations of the petition, which we have set out, speaks for itself. It is our opinion that the instant case, under its facts, is controlled by the facts and decision in Plumer v. Southern Bell Telephone c. Co., 58 Ga. App. 622, ( 199 S.E. 353), and Falls v. Jacobs Pharmacy Co., 71 Ga. App. 547 ( 31 S.E.2d 426). In the Falls case this court said: ". . 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." It will be noted from the allegations of the petition in the instant case that Alred, while within his territory assigned him by his company, was not, at the time doing anything in furtherance of his master's business. But he was, according to the allegations of the petition, looking for the plaintiff Taff. He was waiting outside the house where Taff had gone. As to how long Alred had been waiting, the petition does not allege. It is true that the petition in a general sort of way alleges that he was within his territory in order to attend to his master's business, but it does not allege that at the time of the assault and battery upon Taff that Alred was then engaged in his master's business of selling insurance nor does the petition allege that immediately prior thereto or in connection with the assault and battery that Alred was engaged in his master's business.
The court did not err in sustaining the general demurrer of the Life Insurance Company of Georgia, and in dismissing the petition as to it.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.