Atlanta Coca Cola Bottling Co. v. Brown

• Decision Date: 14 February 1933
• Docket Number: 22187.
• Citation: 167 S.E. 776,46 Ga.App. 451
• Parties: ATLANTA COCA COLA BOTTLING CO. v. BROWN.
• Court: Georgia Court of Appeals

167 S.E. 776

46 Ga.App. 451

ATLANTA COCA COLA BOTTLING CO. v. BROWN.

No. 22187.

Court of Appeals of Georgia, Second Division

February 14, 1933

Syllabus by the Court.

Master is not liable for injury from servant's act entirely disconnected with master's business.

Truck driver's action in cursing, abusing, and threatening customer because she complained to employer of service held not within scope of employment.

Petition based upon respondeat superior doctrine required construction in light of facts alleged, not solely in view of bare allegation, in nature of conclusion, that servant's act was within scope of employment.

Specific allegations of petition, plainly negativing general allegation that servant's acts complained of were within scope of employment, will prevail.

1. It is well settled, that "if a servant steps aside from his master's business, for however short a time, to do an act entirely disconnected with it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not." Savannah Electric Co. v. Hodges, 6 Ga.App. 470, 65 S.E. 322; Greeson v. Bailey, 167 Ga. 638, 640, 146 S.E. 490; Atlanta Baseball Co. v. Lawrence, 38 Ga.App. 497, 499, 144 S.E 351.

2. In the instant case, while the petition alleged that the driver of the defendant's truck was acting within the scope of his employment by the defendant when, upon entering her place of business for the purpose of delivering and collecting for bottled beverages sold to her, he cursed and abused her and approached her in a threatening manner because she had previously complained to his employer that the driver had not promptly and correctly filled her previous orders, the averments of the petition affirmatively and plainly disclose that his act in so doing was not done in the scope of his employment, but that he stepped aside from his employment for the purpose of pursuing a matter wholly personal to himself in cursing, abusing, and threatening the plaintiff with violence on account of the complaint lodged against him. The petition must be construed in the light of the facts set forth, and not solely in view of the bare allegation, in the nature of a conclusion, that the act of the driver was done in the scope of his employment. Since the specific allegations of the petition 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 servant's employment, the specific averments will prevail. Daniel v. Excelsior Auto Co., 31 Ga.App. 621, 624, 121 S.E. 692. Under the rulings by this court in Dugger v. Central of Ga. R Co., 36 Ga.App. 782, 138 S.E. 266; Southeastern Fair Ass'n v. Wong Jung, 24 Ga.App. 707, 102 S.E. 32, and Daniel v. Excelsior Auto Co., supra, the petition failed to set forth a cause of action, and the general demurrer should have been sustained.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Suit by Augusta Brown...