Atlanta Hub Co. Inc v. Jones

• Decision Date: 28 October 1933
• Docket Number: No. 23372.,23372.
• Citation: 171 S.E. 470,47 Ga.App. 778
• Parties: ATLANTA HUB CO., Inc. v. JONES.
• Court: Georgia Court of Appeals

47 Ga.App. 778

171 S.E. 470

ATLANTA HUB CO., Inc.

v.JONES.

No. 23372.

Court of Appeals of Georgia, Division No. 2.

Oct. 28, 1933.

Syllabus by Editorial Staff.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by Mrs. G. W. Jones against the Atlanta Hub Company, Inc. To review a judgment overruling its general demurrer to the petition, defendant brings error.

Affirmed.

Branch & Howard and Bond Almapd, all of Atlanta, for plaintiff in error.

Burress & Dillard, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

1. It is true 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 act, the servant may be liable, but the master is not. Atlanta Coca-Cola Bottling Co. v. Brown, 46 Ga. App. 451(1), 167 S. E. 776. In such a case the act of the servant is not the act of his master, and the latter cannot be held liable under the doctrine of respondeat superior, or the master and servant theory. Atlanta Baseball Co. v. Lawrence, 38 Ga. App. 497, 499, 144 S. E. 351.

2. However, if a tort is committed by a servant 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. Civil Code 1910, § 4413; Fielder v. Davison, 139 Ga. 509, 511(3), 77 S. E. 618; Seaboard Air-Line Ry. v. Arrant, 17 Ga. App. 489(2), 87 S. E. 714.

3. Whether or not the servant was at the time acting within the scope of his employment is generally a question of fact for the jury. Winoker v. Warfield, 136 Ga. 742, 71 S. E. 1051; Friedman v. Martin, 43 Ga. App. 677(2), 160 S. E. 126.

4. In the instant case it cannot be said, as a matter of law, that the collector of the defendant was acting wholly without the scope of his employment and doing an act entirely disconnected therewith, in his efforts to collect a bill due his employer, while under the influence of alcoholic drink and speaking loudly, in saying "By God, I am going to have the money, or else, " and in getting a pistol from his automobile and stepping upon the steps of plaintiff's home, with the pistol, and again saying loudly, "Now, by God, I am going to have the money, or else."

(a) The fact that the defendant had not instructed or authorized its collector to pursue an improper course in the collection of bills due it, or to commit a tort, would not necessarily prevent a recovery from the defendant. Such a holding would preclude a recovery from the master for the misfeasance or malfeasance of its servant in practically every master and servant case, because no sensible master would likely instruct his servant to do a thing in an improper way or to commit an unlawful act. A master rarely commands a servant to be negligent, or employs him with the expectation that he will commit a negligent or willful tort. The true question is, Was the collector of the defendant, at the time he used the above words and acted in the above manner in attempting to collect the bill due the defendant, acting in his individual capacity, or as a collector ofthe defendant company? See Fielder v. Davison, supra; Great Atlantic & Pacific Tea Co. v. Dowling, 43 Ga. App. 549, 552, 159 S. E. 609.

5. Petitioner alleged that by reason of the acts of the defendant's collector in attempting to collect the bill due it, fearing that the collector was going to injure her and the other members of her family, petitioner being in a delicate physical condition, being eight months pregnant, she could not stand the excitement and fear caused by said collector, and she fainted and fell to the floor, had to be carried to her bed, where she remained unconscious for some time, and thereby received a severe nervous shock and remained in a nervous condition for about a month, could not sleep at intervals, had nervous spasms, and during the time she was awake she was nervous, excitable, and fearful. She further alleged...