Frazier v. Southern Ry. Co.
| Decision Date | 03 April 1946 |
| Docket Number | 15381. |
| Citation | 37 S.E.2d 774,200 Ga. 590 |
| Parties | FRAZIER v. SOUTHERN RY. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
2. The master is liable for the wilful torts of his servant acting in the prosecution and within the scope of the master's business, and this is true even though the servant, at the time of the commission of such tort, may evidence anger, malice, or ill will.
3. A case is alleged for jury determination where the specific averments of a petition show that at the time of the commission of the tort complained of the servant was acting in the prosecution and within the scope of the master's business.
Winfield, P. Jones and Thos. A. Lewis, both of Atlanta, for plaintiff in error.
Neely, Marshall & Greene, of Atlanta, for defendant in error.
1. This case comes to this court on certiorari from the Court of Appeals. 35 S.E.2d 525. A motion was made to dismiss the writ of certiorari on two grounds: (1) That the writ of certiorari was improvidently granted, since the case, being an ordinary action for personal injury, is not of such gravity and importance as would justify the granting of the writ; and (2) that, upon a fair construction of the decision of the Court of Appeals, it appears that such court has merely reviewed the allegations of the plaintiff's petition and applied the established decisions of the Supreme Court and the Court of Appeals in determining whether or not the employee of the railroad company, alleged to have assaulted the plaintiff, was acting within the scope of his employment and in furtherance of the business of the master.
The application for certiorari assigned error on the judgment of the Court of Appeals: (1) Because two material allegations, deleted by the Court of Appeals from its statement of facts, disclosed that the act of Young in assaulting the plaintiff was committed in the prosecution of the master's business and within the scope of his employment; (2) because there were sufficient factual averments disclosing the fact that the act of Young was committed in the prosecution of his master's business, within the scope of Young's employment, and the Court of Appeals erroneously dismissed a petition setting forth a cause of action; (3) that in the instant case the decision erroneously misapplies the decision in Louisville & N. R. Co. v. Hudson, 10 Ga.App. 169, 73 S.E. 30; and (4) because the Court of Appeals erred in the present case in basing its decision upon Central of Ga. R. Co., v. Stephens, 20 Ga.App. 546, 93 S.E. 175, which latter decision, it is contended, is directly contrary to the named earlier full-bench decisions of the Supreme Court. It is further insisted that the law as to the master's liability for injuries inflicted by his servant in the commission of a wilful tort is rendered uncertain by the present decision sought to be reviewed, and that the question involved is one of gravity, importance, and great public concern.
Under the constitution of this State, art. 6, sec. 2, par. 4, the Supreme Court has authority to review any case by certiorari from the Court of Appeals. Under the rules of the Supreme Court, a judgment of the Court of Appeals will not ordinarily be reviewed because of an assignment of error complaining that the Court of Appeals has erroneously construed the pleadings, nor will it ordinarily review a decision of the Court of Appeals merely because of an assignment of error complaining that the judgment of such court is incorrect. The Supreme Court will review by certiorari cases of great public concern, gravity, and importance. When a conflict in decisions is involved, it then becomes a question for determination by the Supreme Court, under the facts and circumstances of each particular case, whether or not a certiorari will be granted. The motion to dismiss the writ of certiorari in this case is denied.
The plaintiff in error (plaintiff in the court below) contends that the decision of the Court of Appeals and the judgment of the superior court adverse to the plaintiff were both based on the decision in Central of Georgia R. Co. v. Stephens, supra. Counsel for the defendant in error (defendant in the court below) in their brief state: 'The court below based its decision on Central of Georgia R. v. Stephens, 20 Ga.App. 546, 93 S.E. 175.'
From the facts stated in the Stephens case, supra, it appears that two men, employees of the railway company, were engaged in switching cars, working on a switch engine, and while standing on the footboard of the tender of the switch engine, one, without fault on the part of the other, began to curse him for switching cars at too great a rate of speed, and finally struck him with a lantern, knocking him off of the footboard to the tracks, where he was run over by the engine and killed. The wife of the deceased sued the railway company, as master, for the death of her husband, and when the court overruled a general demurrer of the defendant railway company, the case came to the Court of Appeals for review on the ruling on demurrer. The court held: (Italics ours.)
The Code, § 105-108, provides as follows: '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.' From the opinion as above quoted, it will be seen that the Court of Appeals substituted the words, 'and was not prompted solely or primarily by malice,' for the words of the statute, 'whether the same shall be by negligence or voluntary.' This substitution in language was unauthorized. Courts of last resort must frequently construe the language of a statute, but such courts may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to charge the meaning. The word 'voluntary' in section 105-108 will cover any or all motives or purposes of the wrongdoer, acting in the scope of his employment, which are not covered by 'acts of negligence.' The true test is not whether the tort was committed by reason of anger, malice, or ill will, but whether or not it was committed in the prosecution and within the scope of the master's business. If the tort be committed, not by reason of the employment, but because of matters disconnected therewith, the master would not be liable. If the master might defend by showing that at the time of the commission of the tort by his servant upon another, within the course of his employment, the servant acted through anger, malice, or ill will, the purpose of the statute (§ 105-108), making the master liable for voluntary torts, would be defeated in most instances. Torts, assaults, batteries, and abusive treatment generally, are not prompted by a spirit of brotherly love, friendliness, and helpfulness. It is inconceivable that one employee, acting in the scope of his employment, might, with the use of a lantern or other instrumentality, knock a fellow employee from an engine by the tracks, and to his death, in a spirit of love, kindness, and helpfulness, and only thus make the master liable for his voluntary acts.
As to whether or not anger or malice in the commission of a tort is a matter of defense for the master has been settled by prior decisions of this court. In Central of Georgia R. Co. v. Brown, 113 Ga. 414 416, 38 S.E. 989, 84 Am.St.Rep. 250, it was held: (Italics ours.) The above quotation states the correct rule where the servant commits a wilful or a voluntary tort in the prosecution and within the scope of the master's business. In this connection, see Thompson v. Central R. & Banking Co., 54 Ga. 509(1); Gasway v. Atlanta & W. P. R. Co., 58 Ga. 216; Turner v. Western & A. R. Co., 69 Ga. 827; Western & A. R. Co. v. Turner, 72 Ga. 292, 53 Am.Rep. 842; Columbus & Rome R. Co. v. Christian, 97 Ga....
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