Conney v. Atlantic Greyhound Corp.

• Decision Date: 17 February 1950
• Docket Number: No. 2,No. 32742,32742,2
• Citation: 81 Ga.App. 324,58 S.E.2d 559
• Parties: CONNEY v. ATLANTIC GREYHOUND CORPORATION
• Court: Georgia Court of Appeals

Page 559

58 S.E.2d 559

81 Ga.App. 324

CONNEY v. ATLANTIC GREYHOUND CORPORATION.

No. 32742.

Court of Appeals of Georgia, Division No. 2.

Feb. 17, 1950.

Rehearing Denied March 31, 1950.

Syllabus by the Court.

1. One way of pleading that an agency existed so as to make the alleged principal responsible for the wrongful acts of the agent is by pleading nothing except facts as they really exist or, by legal fiction or presumption, are deemed to exist. It is, generally speaking, unnecessary to allege matters of law, for the judges are always presumed to know judicially what the law is. However, in this method of pleading, if the preliminary or special facts by which the pleader claims that the relationship of principal and agent is established so as to make the employer responsible for the wrongful acts as a matter of law, the pleader may plead his legal conclusions in the nature of general allegations for the purpose of obtaining a decision of the court below. A demurrer would then raise the question whether the conclusions were good in law.

2. Another way of pleading agency so as to make the alleged principal responsible for the wrongful acts of the agent is to allege by a simple direct statement that the defendant corporation by its agent committed the wrongful act. This, as against a general or special demurrer, would be sufficient.

3. Another way of pleading that the agency exist so as to make the alleged principal responsible for the wrongful acts of the agent is to allege by a simple direct statement the fact that the wrongful act was the act of the defendant's servant and was committed in the prosecution of the principal's business and within the scope of the employee's authority, and this would not be subject to general or special demurrer.

4. The court erred in sustaining the demurrer of the defendant employer Atlantic Greyhound Corporation and dismissing the petition as to this defendant.

The plaintiff, E. C. Conney brought an action for damages jointly against F. L. Holbert, as the individual defendant, and the Atlantic Greyhound Corporation, the corporate defendant, seeking to recover for injuries sustained by the plaintiff as the result of an assault made upon him by Holbert. The material allegations of his petition follow. On April 7, 1947, Holbert was employed as a baggage agent for the defendant corporation at the Greyhound Bus Terminal in Atlanta. The duties of Holbert were to check baggage for the various passengers of the defendant corporation and to assist in the loading of such baggage on various outgoing busses of the defendant corporation and he was at all times named in the petition acting within the scope of his employment as an employee of the corporate defendant. On April 7, 1947, the plaintiff went to the Greyhound Bus Terminal in Atlanta and purchased a ticket to Marietta, Georgia. Shortly thereafter he heard the bus for Marietta announced over the loudspeaker in the terminal and went outside of the waiting room and onto the loading platform where he saw several buses parked and taking on passengers in readiness to leave Atlanta for various destinations. The plaintiff went up to a certain but and saw the driver thereof on the outside and near the front door thereof and inquired in a polite manner and tone of voice if that was the bus going to Marietta, at the same time exhibiting to the driver his ticket to Marietta. The driver informed the plaintiff that that bus was not destined to Marietta; whereupon the plaintiff stated, 'They must have called my bus by mistake.' He then turned and was walking away in search of the Marietta bus, when the defendant Holbert, suddenly and without warning pounced upon the plaintiff and struck the plaintiff a hard and forceful blow with his closed right fist, and injured the plaintiff and bent a set of eyeglasses the plaintiff was then wearing. The plaintiff then stepped aside and inquired of Holbert, 'What is the matter?' Holbert then called the plaintiff a 'God damned black son-of-a-bitch.' The plaintiff again inquired, 'What is the matter with you?' Holbert, thereupon, proceeded to kick the plaintiff at least twice. The assault on the plaintiff was unwarranted, unprovoked, wilful, malicious, intentional, and was performed in public in the sight of numerous people and caused the plaintiff much humiliation and certain enumerated physical injuries. The petition prayed actual and punitive damages. The defendant corporation filed its general demurrer, which the court sustained, and the plaintiff excepted. The individual defendant did not demur so far as the present record shows.

Frank A. Bowers, Atlanta, for plaintiff in error.

Gambrell, Harlan & Barwick, Atlanta, W. Glen Harlan, Atlanta, for defendant in error.

MacINTYRE, Presiding Judge.

It seems to us that the reasoning which is the basis of the rule of pleading in those cases in which the corporations are held responsible for the wrongful acts of their agents acting within the scope of their employment or service is well stated by Judge Powell, speaking for the court in the case of Lewis v. Amorous, 3 Ga.App. 50, 53, 54, 59 S.E. 338, and the writer has thought it helpful to him in such cases to go back to this case as a basis for determining or ascertaining whether pleadings set forth such an agency as would make the alleged principal responsible for the wrongful acts of the agent. (1) According to the Lewis case, supra, one way of pleading that an agency existed so as to make the alleged principal responsible for the wrongful acts of the agent is by pleading nothing except facts as they really exist or, by legal fiction or presumption, are deemed to exist. It is, generally speaking, unnecessary to allege matters of law, for the judges are always presumed to know judicially what the law is. However, in this method of pleading, if the preliminary or special facts by which the pleader claims that the relationship of principal and agent is established so as to make the employer responsible for the wrongful acts as a matter of law, the pleader may plead his legal conclusions in the nature of general allegations for the purpose of obtaining a decision of the court thereon. A demurrer would then raise the question whether the conclusions were good in law. It is in cases where this form of pleading is adopted by the pleader that many of the Georgia cases use the expression where general allegations setting up that a named person is agent for another named person (that is, agency) are followed by specific detailed averments, and such averments negative or contradict such general allegations, or if the pleader alleges the ultimate fact that a named person was agent of another but sets up special or preliminary facts by which he claims to establish such relationship, and if these special facts fail to establish such general allegation of agency, and then the pleader follows with the general allegation that the agent is acting within the scope of his employment or service, this latter general allegation is...