Stewart v. Peerless Furniture Co. , 70 Ga. App. 236 ( 1943 )

Where agency is expressly averred a general allegation is sufficient. Where, as in the instant case, the agency is expressly alleged by a general allegation and the business of the principal on which the agent was alleged to have been acting was described, and there are no allegations of specific facts which show that there was no agency, the petition is not subject to general demurrer for the reason that the allegations of agency constitute a mere conclusion of the pleader without facts alleged to support such a conclusion. Here the agency was expressly averred and the business on which the agent was alleged to have been acting was described. The general demurrer was properly overruled, not because it was unnecessary that the agent have authority to act, but because alleging him to be an agent implies that he was authorized, and the allegations can be sustained only by proving authority, express or implied. Pacific Mutual Life Insurance Co. v. Barton, 50 Fed. 2d, 362. Of course, if the agency is expressly averred, but the petition also alleges the specific facts which show the relation between the parties, and those facts show that he was not the agent, then such general allegations of agency must yield to such specific facts as alleged, and the petition is demurrable on the ground that it is a mere conclusion of law not sustained by the facts. There could have been no past ill feeling between Irwin and Stewart. Irwin, the alleged agent, did not know Stewart, and the only grievance, if any, he could have had against Stewart was in connection with the transaction of the forcible collection of a bill of the employer. It was alleged that the agent had a violent temper and was in the habit of flashing his pistol at others on the slightest pretext; that he was a dangerous character; and that all of this was known to the employer. When the alleged agent, while attempting to collect a bill of his employer forcibly from Lillian Evans, and Stewart, who had just arrived on the scene, picked up a shoe which had been thrown at the agent by Lillian Evans, and the agent, through lack of discretion, assumed that Stewart was going to engage in the defense of Lillian Evans, and, being of a known violent temper, was so controlled by it that under the influence of passion aroused by the circumstances and the occasion, he went beyond the strict line of his duty or authority and did the act in the course of his employment and in furtherance thereof. Under such circumstances, the law will regard the act as having been impliedly authorized by the master. The allegations of the petition, when considered one with the other, in effect, are that the shooting was not caused because of a personal grievance wholly disconnected from the business then in hand, to wit, the transaction of the attempted forcible collection; but by alleging that the act of shooting was done by Irwin while acting within the scope of his authority as agent for Peerless Furniture Co., and also describing the manner in which as agent, he was conducting the transaction of collecting, or rather, forcibly attempting to collect a debt of his principal, the petition, in effect, alleged that the shooting was not a disconnected act or thing in which the defendant stepped aside from the business of his principal; but that the shooting was one of a number of elements, or parts, of the business transaction which made up the one entire transaction of attempting to forcibly collect a debt on the occasion in question; and thus the whole composite transaction includes and connects up its various parts, of which the shooting of the plaintiff was one. The principal or master is liable for the torts of his agents or servants "when such torts are committed in connection with the business entrusted to them, and spring from and grow immediately out of such business." Savannah ElectricCo. v. Hodges, 6 Ga. App. 470, 472 (65 S.E. 322). The allegations as to agency, as made in the petition, were good as against general demurrer. The description of the business on which the agent was alleged to have been acting does not show that Irwin was not the agent of Peerless Furniture Co., and the master, having put the servant in a place of responsibility, and having committed to him the collection of his "bills of account," is responsible, if as alleged, the servant from infirmity of temper or under influence of passion aroused by the circumstances and occasion, goes beyond the strict line of duty or authority and inflicts unjustifiable injury upon the plaintiff, for the law will regard the act as having been impliedly authorized by the master. White v. American Security Co., 48 Ga. App. 370 (172 S.E. 853); Thompson v. Wright, 109 Ga. 466, 469 (34 S.E. 560); Atlanta Steel Co. v. Mynahan, 138 Ga. 668 (8) (75 S.E. 980); Savannah Electric Co. v. McCants, 130 Ga. 741 (61 S.E. 713); 3 C. J. S. 238, § 305. I think the court erred in sustaining the general demurrer of Peerless Furniture Co., and dismissing the case as to them.