Brown v. Union Bus Co., 27586.

• Court: United States Court of Appeals (Georgia)
• Citation: 6 S.E.2d 388,61 Ga.App. 496
• Docket Number: 27586.
• Parties: BROWN v. UNION BUS CO. et al.
• Decision Date: 05 December 1939

6 S.E.2d 388

61 Ga.App. 496

BROWN v. UNION BUS CO. et al.

No. 27586.

Court of Appeals of Georgia, Division No. 2.

December 5, 1939

Rehearing Denied Dec. 19, 1939.

Syllabus by the Court the carriers. Code 1933, §§ 68-501 to 68-509, 105-108; Laws 1937, pp. 727, 728.

Earl Brown brought suit for damages on account of personal injuries against the Union Bus Company, the Southeastern Greyhound Lines, Service Coach Lines, Inc., the American Fidelity & Casualty Company, Republic Underwriters, and J. B. Griggs, alleging that the defendants were jointly and severally liable to him. The plaintiff alleged in the petition that J. B. Griggs was the general agent and servant of all of the common carrier defendants, in charge of their union bus terminal in the City of Dublin, selling tickets handling the money from the sale of tickets, and having the management and direction of their busses in Laurens County and in such busses making ingress and egress from the bus station which is located between the Thompson Hospital and the Standard Oil Company, that the busses of the defendants have no shed at this location, but only an office which abuts on the street, and all busses have a common, but no other right to park on the curbing at the bus station and vicinity with all other owners and operators of motor vehicles, that on October 2, 1937, the plaintiff, who was working as a general male attendant for the Hicks Hospital in the said city, was sent by automobile on an emergency mission to Thompson's Hospital for a medicine needed in a case of great urgency, that the plaintiff parked the automobile of his employer at the Thompson Hospital and entered the door of the hospital, where he was met by a nurse thereof with the required medicine, and that as the plaintiff started to return to his automobile, and as he reached the bottom steps of the hospital, he was met by Griggs, who, without notice or warning, brutally and maliciously struck the plaintiff with a pair of brass knucks or other blunt instrument, inflicting painful and permanent injuries, for which this suit is brought. The plaintiff further alleged that he was assaulted without cause in public by Griggs, agent and servant of the defendants, that said Griggs, in addition to his other duties in behalf of his employers, undertakes to keep certain spaces within the vicinity of the station clear of all other motor vehicles, but no right has been conferred upon the defendants thereto, and that Griggs, after the plaintiff had parked in front of the hospital, near the bus station, although no bus was parked there at the time, nor was one due there, and undertaking to accomplish and carry out his employer's business, resorted to the attack on the plaintiff, and in the perpetration of the assault Griggs was acting within the prosecution and scope of the business of the defendants.

It is alleged in the petition that the defendant, "American Fidelity & Casualty Company of Richmond, Virginia, is an indemnity insurance company for and in behalf of the Union Bus Company and the Southeastern Greyhound Lines, *** and which said indemnity company has qualified under the laws of the State of Georgia to secure said Union Bus Company and the Southeastern Greyhound Lines against loss for the protection of the public against injuries caused by the negligence of said motor carriers, by themselves, their agents or servants." It is also alleged in the petition that the defendant "Republic Underwriters is a *** corporation *** qualified under the laws of Georgia to write indemnity insurance for common carrier motor busses insuring them against loss on account of the negligence of themselves, their agents and servants; and that it has insured the said Service Coach Lines, Inc., as provided by law." It is also alleged that the insurance companies are nonresident corporations and that each has within the State of Georgia agents upon whom service of suits can be legally perfected in this state.

The trial judge dismissed the plaintiff's petition on general demurrer, and to this judgment he excepts.

R. Earl Camp, of Dublin, for plaintiff in error.

R. M. Daley, of Dublin, and Irving S. Nathan and Haas, Gambrell & Gardner, all of Atlanta, for defendants in error.

STEPHENS, Presiding Judge (after stating the foregoing facts).

"Every person shall be liable for torts committed by *** his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary." Code, § 105-108. Under the allegations of the petition it appears that the duties of the servant of the defendants consisted in keeping the space at the curbing, both in front of the bus station of the defendants, and in the vicinity thereof, free from automobiles, so that the busses of the defendants could have ingress and egress to and from the station, that the plaintiff parked his automobile in front of the hospital, which was adjacent and near to the bus station, and that after he had so parked his automobile the defendants' servant resorted to the attack upon the plaintiff's person, and that such servant was, at the time he assaulted the plaintiff, acting in the prosecution of the defendants' business. See J. M. High Co. v. Holler, 42 Ga.App. 657, 157 S.E. 209; Great Atlantic & Pacific Tea Co. v. Dowling, 43 Ga.App. 549, 159 S.E. 609; Personal Finance Co. v. Whiting, 48 Ga.App. 154 (4) and citations, 172 S.E. 111; Seaboard Air-Line Ry. v. Arrant, 17 Ga.App. 489 (2a), 87 S.E. 714; Century Bldg. Co. v. Lewkowitz, 1 Ga.App. 636, 57 S.E. 1036; McClure Ten Cent Co. v. Humphries, 29 Ga.App. 524 (2b), 116 S.E. 54. A master is liable for a tort committed by his servant in the prosecution and within his business, whether by negligence or willfully. Savannah Electric Co. v. Wheeler, 128 Ga. 550, 58 S.E. 38, 10 L.R.A.,N.S., 1176. A master is liable for the willful torts of a servant, committed in the course of the servant's employment, just as though the master had himself commanded them. Central of Georgia Ry. Co. v. Brown, 113 Ga. 414, 415, 38 S.E. 989, 84 Am.St.Rep. 250. See Western & A. R. R. v. Turner, 72 Ga. 292, 53 Am.Rep. 842; Peeples v. Brunswick, etc., R. Co. 60 Ga. 281; Gasway v. Atlanta & W. P. R. Co., 58 Ga. 216. The expression "in the scope of his business" or "in the scope of his employment," or similar words, have sometimes been given too narrow a meaning. It is not essential to the liability of a master for the willful and intentional tort of a servant that the servant shall have acted at the command of the master or with the master's consent. Ford v. Mitchell, 50 Ga.App. 617, 179 S.E. 215. 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 question is was the defendants' agent, at the time he committed the tort, acting in an individual capacity or as agent of the defendants in charge of the bus station? The assault was committed within the near vicinity of the bus station and was committed after the plaintiff had parked his automobile near...