Digsby v. Carroll Baking Co.

• Decision Date: 18 March 1948
• Docket Number: 31903.
• Parties: DIGSBY v. CARROLL BAKING CO.
• Court: Georgia Court of Appeals

47 S.E.2d 203

76 Ga.App. 656

DIGSBY v. CARROLL BAKING CO.

No. 31903.

Court of Appeals of Georgia, Division No. 1.

March 18, 1948

Syllabus by the Court

1. 'The courts have settled down to the common-sense doctrine that a master is liable for the torts of his servant, committed in the course of the servant's employment, even though the tort be a wilful one.' Central of Georgia Railway Co. v. Brown, 113 Ga 414, 416, 38 S.E. 989, 84 Am.St.Rep. 250.

2. 'A corporation is responsible for the acts of its agents in the business of their employment, just as an individual is liable; and whether the agent committed a tortious act, is a question of fact for the jury.' Century Building Co v. Lewkowitz, 1 Ga.App. 636, 57 S.E. 1036.

3. 'While mental suffering, unaccompanied by injury to purse or person, affords no basis for an action predicated upon wrongful acts, merely negligent, yet such damages may be recovered in those cases where the plaintiff has suffered at the hands of the defendant a wanton, voluntary or intentional wrong and the natural result of which is the causation of mental suffering and wounded feelings.' Dunn v Western Union Tel. Co., 2 Ga.App. 845(3), 59 S.E. 189.

4. The allegations of the petition as to the language and conduct of the defendant's bill collector, in his efforts to collect a bill from the plaintiff, and the injuries and damages resulting therefrom, set out a cause of action, and the court erred in sustaining the general demurrer of the defendant and in dismissing the case.

Mrs. D. J. Digsby brought suit against Carroll Baking Company, a corporation, for damages for an alleged tort committed upon her by its agent, employee and servant. The material allegations of her petition were that the defendant had an employee named Robert Praytor, who was at all times therein mentioned acting as the servant and agent of the defendant, and engaged in conducting and prosecuting the business of the defendant; that on the 23rd day of May, 1947, the said agent and employee came to the home of the plaintiff to collect a bill of two dollars due to the defendant; that plaintiff's husband was not at home; that the plaintiff was pregnant and this was known to said agent and employee as her condition was obvious; that 'immediately upon arrival at petitioner's home the defendant's servant and agent became unusually boisterous, and started using vulgar, profane and abusive language to plaintiff. The defendant's agent in using the profane and vulgar language stated to plaintiff he was going to take something from the house to get the two ($2.00) dollars that was due his company. At this point in the conversation the plaintiff told the defendant's agent to leave the premises, that she was becoming ill and at this time the plaintiff was nervous and was practically in a state of hysteria. The defendant's agent and servant disregarded the physical condition of plaintiff, which was distinctly obvious to the defendant's agent and servant. And while petitioner was ill, nervous and upset and hysterical, the defendant's agent and servant stated to her that if he couldn't get the money any other way he was going to 'take it out in trade', meaning he was going to have sexual intercourse with petitioner.' She alleged also that 'the vile, vulgar and abusive language used by the defendant's agent and servant was diabolical, reprehensible and atrocious,' and when defendant's agent and servant left the premises the plaintiff's nerves were completely shattered, and she was forced to go to the hospital on the same day, and that her child was born about 2 o'clock in the morning of the day following; that she suffered humiliation and mortification as a direct result of the inhuman conduct of the defendant's agent and servant, which conduct was malicious and wilful and without sufficient cause; that she had not completely gained her composure, and 'that her nerves were still jumpy and upset as a result of the abominable conduct on the part of the defendant's agent and servant.'

No special demurrer was filed to any of the allegations of the petition, but a general demurrer was filed as follows: 'Said petition does not as a whole, nor do any of its several paragraphs, show a cause of action against the defendant.' This demurrer was sustained in an order granting the plaintiff ten days in which to amend, 'to meet the objections pointed out by the demurrer.' The plaintiff did not amend and the case was dismissed under the ruling on the demurrer. The plaintiff has assigned error in this court on that ruling.

Louis M. Tatham, J. Richmond Garland and R. A. Whitsett, all of Atlanta, for plaintiff in error.

Calhoun & Calhoun, and Clarence H. Calhoun, all of Atlanta, for defendant in error.

PARKER Judge.

'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. 'A corporation is responsible for the acts of its agents in the business of their employment, just as an individual is liable; and whether the agent was acting within the scope of his employment when he committed a tortious act is a question of fact for the jury.' Century Building Co. v. Lewkowitz, 1 Ga.App. 636, 57 S.E. 1036. 'A corporation, under the law, is a 'person,' in the meaning of the first section quoted, and the terms of the section apply to corporations as well as to natural persons, and the principle of law there announced is well settled by the adjudications of the courts.' Louisville & N. R. Co. v. Hudson, 10 Ga.App. 169, 171, 73 S.E. 30, 31. '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 willful 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.' Fielder v. Davison, 139 Ga. 509, 511, 77 S.E. 618, 619. 'Expressions used in some reports and text-books, that a master is bound by the acts of his agent or servant in the scope of his agency and in the furtherance of the master's business, or when the servant is acting for the benefit of the master, do not mean that the agent's act must be beneficial to the master or the latter is not bound. If any declare such a rule as that the master is bound by torts of the servant which benefit him, but not by any others, we cannot accept it as the rule is this state.' Savannah Electric Co. v. Wheeler, 128 Ga. 550, 554, 58 S.E. 38, 39, 10 L.R.A.,N.S., 1176. See also Frazier v. Southern Ry. Co., 200 Ga. 590, 37 S.E.2d 774. 'Some of the courts seem at one time to have been inclined to hold that a master could not be held liable for the willful torts of his servant, because, it was said, if the servant, through anger or malice, committed an assault upon a person, he ceased for the time being to occupy the position of servant, and acted independently; that, inasmuch as he was not authorized to commit an assault, he did not represent the master in that act, but acted as an individual, the master, therefore, being not liable either in case or in trespass. This argument has long since been exploded. The theory that one may be a servant one minute, and, the very next minute, get angry, commit an assault, and in that act be not a servant, was too refined a distinction. * * * The courts have settled down to the common-sense doctrine that a master is liable for the torts of his servant, committed in the course of the servant's employment, even though the tort be a willful one.' Central of Georgia Railway Co. v. Brown, 113 Ga. 414, 416, 38 S.E. 989, 990, 84 Am.St.Rep. 250.

As was said by this court in Louisville & N. R. Co. v. Hudson supra, 'The difficulty is in the application of the general principle of law to the particular facts.' The law is plain, but each case must be considered in the light of its own facts. It appears here that the person who is alleged to have committed a tort upon the plaintiff was the employee and servant of the defendant; that in the discharge of his duties as such servant he went to the home of the plaintiff to collect a small bill she owed the defendant, which purpose was clearly within the prosecution of the business of the master; and that when the servant arrived at the home of the plaintiff he immediately 'became unusually boisterous, and started using vulgar, profane and abusive language to the plaintiff,' and threatening to take something from the house to get the money due the company. There is no allegation in the petition which demands the conclusion that the continuity of the employment of the agent as the servant of the...