Georgia Land Co. v. Davis

• Decision Date: 20 March 1922
• Docket Number: 12713.
• Citation: 111 S.E. 219,28 Ga.App. 398
• Parties: GEORGIA LAND CO. v. DAVIS.
• Court: Georgia Court of Appeals

111 S.E. 219

28 Ga.App. 398

GEORGIA LAND CO. v. DAVIS.

No. 12713.

Court of Appeals of Georgia, Second Division

March 20, 1922

Syllabus by the Court.

This is an action for damages against a corporation for an assault and battery by its alleged agent upon the plaintiff. Plaintiff alleged that the defendant, through its superintendent and other laborers, was proceeding to construct wire fencing upon property owned and possessed by plaintiff, and after the defendant had been notified in writing of the plaintiff's title and possession; that when the plaintiff attempted to cut the wire, this agent and superintendent, without excuse or provocation, struck the plaintiff upon the hip with a club axe, felling him to the ground, and, when the plaintiff attempted to rise, again struck him with the axe, splitting open his face and otherwise injuring him, so that he was rendered unconscious and that this agent repeated the assault while the plaintiff was on the ground, in a helpless condition, by kicking him and striking him on the body with a hammer. The plaintiff and the defendant corporation both offered evidence tending to show title in themselves to the property in question. The defendant sought to disclaim any agency on the part of the person committing the assault, but only on the theory that while the fencing was being done upon property claimed by the corporation, it was for and on behalf of two of the corporate officers as individuals. The testimony for the plaintiff fully sustained his allegations; and there was uncontroverted evidence that after he had been felled to the ground and was lying in a helpless condition the alleged agent renewed the battery by striking the plaintiff with a hammer and kicking him. A verdict in the amount of $500 was rendered in favor of the plaintiff. The defendant excepts to the overruling of its motion for a new trial. Held:

"Declarations of an alleged agent are not by themselves admissible to prove agency, but it may be established by proving circumstances apparent relations, and the conduct of the parties; and where the extraneous circumstances, independently of and without regard to the declarations of the agent himself, clearly tend to establish the fact of his agency, his declarations, though inadmissible if standing alone, may, as a part of the res gestæ of the transaction, be considered." Collier v Schoenberg, 6 Ga.App. 496, 106 S.E. 581. The record discloses certain...