American Oil Co. v. McCluskey, 42734

• Decision Date: 04 April 1969
• Docket Number: No. 42734,Nos. 1,3,2,42734,s. 1
• Citation: 119 Ga.App. 475,167 S.E.2d 711
• Parties: AMERICAN OIL COMPANY v. Roberta J. McCLUSKEY et al
• Court: Georgia Court of Appeals

Page 711

167 S.E.2d 711

119 Ga.App. 475

AMERICAN OIL COMPANY v. Roberta J. McCLUSKEY et al.

No. 42734.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 4, 1969.

Syllabus by the Court

1. In conformity with the ruling of the Georgia Supreme Court the judgment entered in the previous appearance of this case (118 Ga.App. 123, 162 S.E.2d 853) is vacated.

2. The evidence was sufficient to support the verdict and the various enumerations of error relating thereto are without merit.

3. The trial judge did not err in overruling a motion to exclude from evidence pictures of the deceased.

4. The remaining enumerations of error are without merit.

The facts of this case may be found in our previous considerations of it. See American Oil Co. v. McCluskey, 116 Ga.App. 706, 158 S.E.2d 431, and American Oil Co. v. McCluskey, 118 Ga.App. 123, 162 S.E.2d 853.

While this court's judgments were reversed by the Supreme Court (224 Ga. 253, 161 S.E.2d 271 and 225 Ga. 63, 165 S.E.2d 830), there are yet remaining questions which were properly raised by the appellant in its enumerations of error and which have not been dealt. We now consider them.

Edwards, Bentley, Awtrey & Parker, A. Sidney Parker, Scott S. Edwards, Jr., Marietta, for appellant.

Mundy, Gammage & Cummings, William W. Mundy, Cedartown, Raymond M. Reed, Marietta, Harl C. Duffey, Jr., Rome, for appellee.

QUILLIAN, Judge.

1. This court's judgment in American Oil Company v. McCluskey, 118 Ga.App 123, 162 S.E.2d 853, having been reversed by the Supreme Court, McCluskey v. American Oil Co., 225 Ga. 63, 165 S.E.2d 830, the judgment is vacated.

2. The defendant contends the trial judge erred in overruling the motion for judgment notwithstanding the verdict, motion for summary judgment, motion for directed verdict and motion for new trial on the general grounds. The defendant insists that the evidence in support of the summary judgment and submitted upon the trial did nto authorize the finding that the plaintiff was entitled to recover damages of the defendant for the death of her son, an employee of the defendant, whose death was alleged to have resulted from the negligent act of a fellow servant. The fellowservant rule was not invoked as a defense, obviously because the deceased was only twelve years old, and the doctrine was not applicable. Union Cotton Mills v. Harris, 144 Ga. 716(2-a), 87 S.E. 1029.

The defendant insists that the evidence failed to establish liability on its part because, according to the proof submitted: (a) acts of the defendant's servant, which caused the fatal injury to the deceased, were not committed while in the prosecution of the defendant's business, but occurred when the servant had stepped aside from his employment and was engaged in acts wholly personal to himself; (b) the defendant did not have knowledge prior to the tragic event that its servant, whose alleged negligence caused the injury fatal to the deceased, carried the pistol when engaged in the duties of his employment or that he drank intoxicating liquors; (c) the deceased's death resulted from a sheer accident. We have examined each of these contentions in the light of the evidence adduced upon the trial.

(a) The defendant's invocation of the time-honored rule that where a servant departs or steps aside from his employment and commits an act entirely personal to him, his master is not responsible for the consequences of such an action raises a grave question. See in this connection American Security Co. v. Cook, 49 Ga.App. 723, 176 S.E. 798. The evidence was that the defendant's servant, Mr. Disharoon, carried the pistol from which the fatal shot was fired for the dual purpose of defending himself and protecting certain money and other property entrusted to his care by the defendant. He related instances which appeared to make the possession of the pistol expedient in carrying out the purpose of his employment. He denied he had ever been instructed not to carry the pistol, and testified that on one occasion while he and his superior, or supervisor, were together in a motel while engaged in the defendant's service, his superior saw him remove the pistol from his suitcase. Hence, his superior had knowledge that the carried the same while performing the duties of his employment. The witness further testified that he brought the pistol into the service station where the deceased was shot for the purpose of cleaning the weapon. The cleaning of the pistol was incidental to, and a part of, the act of carrying it. Employers Liability Assurance Corp. v. Henderson, 37 Ga.App. 238(3), 139 S.E. 688.

The act of a servant may be within the scope of his employment, though not done at the master's direction, or with his permission and even if his master does not know the act is being committed. The test is whether the act is done by the servant in connection with the master's business and for the purpose of promoting the master's interest. It is not necessary that the thing done be wise or even beneficial to the master, provided the servant's purpose is to benefit the master. 'The crime committed by the servant was in his injudicious attempt to execute this lawful authority in an unlawful manner. It was the means adopted by the servant for the purpose of performing the authorized work of the master. The civil liability of the master is not affected in such a case by the fact that the servant has rendered himself criminally liable. 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.' Southern Railway Co. v. James, 118 Ga. 340, 344, 45 S.E. 303, 305, 63 L.R.A. 257.

In Fielder v. Davison, 139 Ga. 509, 511, 77 S.E. 618, it is held: 'Omitting the fellow-servant doctrine, the general rule is that a master is liable for the tort of his servant, whether negligent or voluntary, if done by his command or in the prosecution and scope of his business. Civil Code, § 4413. The expressions, 'in the scope of his business,' or 'in the scope of his employment,' or similar words, have sometimes been given too narrow a meaning. A master rarely commands a servant to be negligent, or employs him with the expectation that he will commit a negligent or wilful tort; but if the act is done in the prosecution of the master's business, that is, if the servant is at the time engaged in serving the master, the latter will be liable. Savannah Electric Co. v. Wheeler, 128 Ga. 550, 553, et seq., 58 S.E. 38, 10 L.R.A., N.S., 1176.'

The principle is spendidly treated in the text of 35 Am.Jur. 987, Master and Servant § 553. 'A servant is acting within the scope of his employment when he is engaged in doing for his master what he has been directed to do, or as it has been said, 'any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act, or a natural, direct, and logical result of it' is within the meaning of the phrase 'scope of employment.' The test is the nature of the tortious act and its relation or nonrelation to that which the actor was employed to do. If the employee, being engaged about the business of the employer, adopts methods which he deems necessary, expedient, or convenient, and the methods adopted prove hurtful to others, the employer may be held liable. The purpose of the employee's act, rather than the method of performance formance thereof, is said to be the important consideration. Liability on the part of the employer is not limited to the employee's acts which promote the objects of the employment, the general idea being that in order to fix liability on the employer, the employee at the time of doing the wrongful act must have been acting in behalf of the employer, and not on his own account.'

The wise pronouncement of Prince v. Brickell, 87 Ga.App. 697, 700, 75 S.E.2d 288, 291 is: 'Nor does it matter that the killing of the plaintiff's husband was not beneficial to the defendant. * * * And, '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. " Also refer to the case of Frazier v. Southern Railway Company, 200 Ga. 590, 594, 37 S.E.2d 774.

So regardless of whether the servant, Mr. Disharoon, carried the pistol without the defendant's knowledge and without any direction or permission to carry it, his carrying and cleaning the weapon must be held to be within the scope of his employment.

Moreover, according to Mr. Disharoon's testimony, which was undisputed, knowledge of his superior employee concerning the practice of carrying the pistol was chargeable to the defendant. In this connection refer to 35 Am.Jur. 559, Master and Servant § 129, and p. 447, § 4. Also Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 183. This is under a doctrine similar to those applicable to principal and agent. This court held in Prince v. Brickell, 87 Ga.App. 697, 700, 37 S.E.2d 774, supra, there is no difference in applying the rule relative to respondeat superior in cases of master and servant and cases of principal and agent. Both hinge upon the knowledge imputable to the master or principal. Where the master, as in the present case, had knowledge that a servant pursues a given course of conduct and takes no steps to prevent such conduct, he is liable for its consequences. The holding of Atlantic Coast Line Railroad Co. v. McLeod, 9 Ga.App. 13(5), 70 S.E. 214, is authority for this view.

Central of Ga. R. Co. v. Mobley, 6 Ga.App. 33(4), 64 S.E. 300, holds: 'A corporation knows of the violation of its rules and acquiesces therein whenever the particular agent of the corporation, who is charged with the enforcement of the rule in question, knows of its violation and acquiesces therein. The knowledge of the agent is the knowledge of the corporation; and though it is the duty of the...