Ford Motor Co. v. Williams
| Citation | 219 Ga. 505,134 S.E.2d 32 |
| Decision Date | 12 November 1963 |
| Docket Number | No. 22167,22167 |
| Parties | FORD MOTOR COMPANY v. Ervin D. WILLIAMS et al. |
| Court | Supreme Court of Georgia |
Syllabus by the Court
The petition failed to state a cause of action for any relief against the Ford Motor Company and it should have been dismissed as to this defendant on general demurrer.
On November 18, 1959, Ervin D. Williams filed his petition in two counts against the Ford Motor Company and others. On June 1, 1960, Judge Wood sustained certain general and special demurrers, with permission to the plaintiff to amend. On July 16, 1960, the plaintiff filed an 'amended petition' adding a third count. The 'amended petition' was duly allowed and ordered filed and the defendant Ford Motor Company filed its renewed demurrers to the amended petition. The amended petition was subsequently amended and demurrers were renewed. On July 6, 1962, Judge Tanksley ordered the plaintiff to redraft his petition. On July 11, 1962, the plaintiff's redrafted petition was allowed and ordered filed subject to demurrer. On October 16, 1962, Judge Tanksley passed an order reciting that the 'demurrers and renewed demurrers' of the Ford Motor Company (and other defendants) were overruled.
On review the Court of Appeals affirmed the judgment overruling the general demurrers of Ford Motor Company. Ford Motor Co. v. Williams, 108 Ga.App. 21, 132 S.E.2d 206. Certiorari was granted to review the judgment of the Court of Appeals.
In paragraph 3 of the 'revised petition' it is alleged that on October 7, 1959, the defendant Ford Motor Company had in its employ a named person 'whose duties included the investigation of thefts from his employer and the location and return to his employer of any missing property belonging to his employer.' Paragraph 4 alleges: 'For all purposes material to this action the acts of the said Seiver were performed within the scope of his employment, as the agent and servant of the defendant Ford Motor Company and the acts alleged herein of the said employee are chargeable to the defendant corporation.' In paragraph 5 it is alleged that on October 7, 1959, the 'employee of the defendant corporation, entered upon and into the premises and home of the plaintiff, at a time when the plaintiff and his family were away from home, for the purpose of removing therefrom personal property belonging to the plaintiff.' By reference these allegations of count 1 are adopted and incorporated in counts 2 and 3 of the 'revised petition.'
Hansell, Post Brandon & Dorsey, J. William Gibson, Atlanta, for plaintiff in error.
Benjamin B. Blackburn, III, Peek & Blackburn, Ezra E. Phillips, Atlanta, for defendant in error.
The Code provides that 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.' Code § 105-108. Construing this Code section, this court in Greeson v. Bailey, 167 Ga. 638, 146 S.E. 490, held: 'If injury is done by the servant not in the prosecution of scope of his business, the master is not liable. * * * the servant must be acting both in the prosecution and within the scope of his business.' See also Lee v. Nelms, 57 Ga. 253, 257(2); Frazier v. Southern Railway Co., 200 Ga. 590(2), 37 S.E.2d 774.
In the present case the plaintiff in paragraph 4 alleges only that the servant was acting within the scope of the master's business, and in paragraph 5 the positive allegation is made, not that the servant was seeking to recover property of the master, which was the sole extent of his authority under the allegations of paragraph 3, but that the servant 'entered upon and into the premises and home of the plaintiff * * * for the purpose of removing therefrom personal property belonging to the plaintiff.'
The Court of Appeals in its opinion relies upon the language of this court in Toler v. Goodin, 200 Ga. 527, 534, 37 S.E.2d 609, that '* * * it is a well-settled rule of construction that what is clearly implied is as much a part of a pleading as what is expressed; and considering the instant petition as a whole, we think that the requisite allegation was necessarily implied.' Any attempt to apply this statement from Toler v. Goodin, supra, to the present case would be a distortion of the rules of construction. The rule in the Toler case was based upon an implication from other pleaded allegations, while in the present case we are confronted with a definite, positive, unambiguous statement by the pleader that the servant of the defendant entered the plaintiff's home, not for the purpose of recovering his employer's property, but for the purpose of removing therefrom property of the plaintiff, and this allegation in each of the three counts of the petition is nowhere withdrawn in subsequent allegations. But an application of the statement in Toler v. Goodin, supra (), should not be made even if in point here since it is in direct conflict with older decisions of this court which are controlling. Wright v. Hicks, 15 Ga. 160 (3). See also Holbrook v. Town of Norcross, 121 Ga. 319, 48 S.E. 922; Maynard v. Armour Fertilizer Works, 138 Ga. 549, (5), 75 S.E. 582; Bailey v. B. F. Goggins Granite etc. Inc., 192 Ga. 72, 74, 14 S.E.2d 568; Florida State Hospital for the Insane v. Durham Iron Co., 194 Ga. 350, 355(5), 21 S.E.2d 216.
It has been the law of this State since the passage of the Judiciary Act of February 16, 1799, that the plaintiff shall 'plainly, fully, and distinctly' set forth his cause of action. Cobb's Digest 1851, p. 470; Code § 81-101. In Johnson v. Ballingall, 1 Ga. 68, 70, in applying the Judiciary Act of 1799, this court said: 'It is required of the plaintiff that he file his petition in writing--which shall contain the charge, allegation, or demand--plainly, fully, and distinctly set forth; and of the defendant, that he shall, on or before the last day of the term to which the petition is returnable, make his defense or answer in writing, which shall plainly, fully, and distinctly set forth the cause of his defense.' Later in the same opinion (1 Ga., at page 71) the court stated: 'Our effort and aim will be to uphold and maintain this magnificent monument of legal and juridical wisdom, in all of its length and breadth.'
In Murphy v. Lawrence, 2 Ga. 257, 258, it was said: ...
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...Practice Act Judge Felton's conclusion that the motion to dismiss was properly sustained would have been correct. Ford Motor Company v. Williams, 219 Ga. 505, 134 S.E.2d 32. But under our ruling in Harper v. DeFreitas, 117 Ga.App. 236(1), 160 S.E.2d 260 it seems to us that the petition was ......
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