Crawford v. Exposition Cotton Mills , 63 Ga. App. 458 ( 1940 )

While I concur in the ruling in the first division of the opinion, I dissent from the ruling in the second division and from the judgment of reversal, for the following reasons: Although a corporation is liable for a tort committed by its servant in the prosecution of its business and within the scope of his employment, I think that under the allegations of the petition as amended it is plainly shown that in what Ferrell did he was gratifying his own resentment and anger, that his conduct was in no way connected with the business of his employer; and that the court properly sustained the general demurrer which was filed in its behalf. It is alleged that at the time of his injury, the plaintiff was an invitee of the corporation, but the specific averments show distinctly that he was not. He had admittedly reached the door when it was being closed, and as he stood outside he uttered some undisclosed statement concerning his dismay or disappointment in arriving too late. The closing of the door clearly announced to him that he had come at a time when the invitation to trade, otherwise available to customers, did not extend to him. He acquiesced in the situation, made no protest, but only expressed his disappointment. What he said is not disclosed by the petition; but, with or without cause for resentment, Ferrell is shown to have become greatly angered. When he emerged from the store he was doing nothing in which the plaintiff and the employer were mutually interested. It is not alleged that the plaintiff, while outside the store, made inquiry about anything related to the corporation's business, or that Ferrell approached the plaintiff on any matter in which the employer was interested. It is alleged only in general terms that he was acting on his own behalf and while in line of duty on behalf of the employer, and seized a bar of iron and struck the plaintiff. "`It is the general rule that the allegations of a petition will, when attacked by appropriate demurrer, be construed most strongly against the pleader. So, where general allegations . . are followed by specific detailed averments, the former ordinarily will yield to the latter.' McClure Ten Cent Co. v. Humphries,29 Ga. App. 524 (116 S.E. 54), and cases cited. While it is true that a general averment alleging in effect that the act of the servant was done in the prosecution of the master's business and within the scope of the servant's authority has been held to state traversable facts rather than a mere conclusion of law (SavannahElectric Co. v. McCants, 130 Ga. 741 (2), 61 S.E. 713), yet when, as in the instant case, a general averment of this nature is amplified by specific allegations which plainly and distinctly negative as a fact the general charge that the acts complained of were in the prosecution of the master's business and within the scope of the agent's authority, the specific averments will prevail." Daniel v. Excelsior Auto Co., 31 Ga. App. 621,624 (121 S.E. 692). See also Ogletree v. MacDougaldConstruction Co., 45 Ga. App. 128 (163 S.E. 320). The petition as amended does not present a case where the conduct of the employee was resorted to for the purpose of executing any business for the master, and where the master might be liable whether the means adopted were appropriate or not. It is an instance where the employee stepped aside from the master's business to serve his own ends and where, though the servant may be liable, the master is not. See Savannah Electric Co. v. Hodges,6 Ga. App. 470 (65 S.E. 322); Greeson v. Bailey,167 Ga. 638 (146 S.E. 490); Henderson v. Nolting Cor.,184 Ga. 724 (193 S.E. 347, 114 A.L.R. 1022). "The test is not that the act of the servant was done during theexistence [italics ours] of the employment, — that is to say, during the time covered by the employment, — but whether it was done in the prosecution of the master's business; whether the servant was at that time engaged in serving his master; for, if the servant steps aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended, and the servant alone is responsible for his act committed by him during this period.'" L. N. Railroad Co. v. Hudson, 10 Ga. App. 169, 172 (73 S.E. 30). Where, under the allegations of the petition no reasonable construction can be drawn except that the employee was engaged solely in a private enterprise of his own, the question must be decided by the court as a matter of law; and accordingly it should be held that the court did not err in sustaining the general demurrer.

It might be added that it is not material that, as alleged, the corporation was negligent in employing and retaining a manager who was of abnormally high temper and easily provoked, with or without cause, inasmuch as the exercise of such disposition was in nowise connected with the prosecution of the master's business at the time of the plaintiff's injury. Schwartz v. NunnallyCo., 60 Ga. App. 858 (5 S.E.2d 91), cited and relied on by the plaintiff, is readily distinguishable on its facts. There the plaintiff went into the defendant'sstore and made a purchase, and, after leaving, returned to get some change that was due him in the purchase, and was given some offense by the manager in connection with the transaction. The manager followed the plaintiff outside of the store, and, while one of his assistants held the plaintiff, struck him while his back was turned. It was held that it was a jury question whether the attack outside of the store was so closely connected with the authorized transaction of the company's business by the manager as to make it liable for his wilful acts outside of the store. In the present case the beating of the plaintiff was in no way related to or consequent upon any business transaction had with the defendant Ferrell on behalf of the employer.