Henderson v. Nolting First Mortg. Corp.

• Citation: 193 S.E. 347,184 Ga. 724
• Decision Date: 07 October 1937
• Docket Number: 11876,11884.
• Parties: HENDERSON v. NOLTING FIRST MORTGAGE CORPORATION et al. NOLTING FIRST MORTGAGE CORPORATION et al. v. HENDERSON et al.
• Court: Supreme Court of Georgia

193 S.E. 347

184 Ga. 724

HENDERSON v. NOLTING FIRST MORTGAGE CORPORATION et al.

NOLTING FIRST MORTGAGE CORPORATION et al. v. HENDERSON et al.

Nos. 11876, 11884.

Supreme Court of Georgia

October 7, 1937

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Petition by J. R. Henderson against the Nolting First Mortgage Corporation and others. To review a judgment overruling their general demurrers to the petition, three of the six defendants bring error, and, to review a judgment sustaining the general demurrer of the other three defendants, plaintiff brings error.

Affirmed on each bill of exceptions.

ATKINSON P.J., dissenting in part.

Syllabus by the Court.

1. The first count of the petition was based upon the alleged relation of master and servant as between the defendants and the person who assaulted the plaintiff. It appearing from the allegations that the act of the alleged servant was not within the scope of his employment, the defendants cannot be held liable under the doctrine of respondeat superior. Accordingly, the first count did not state a cause of action against any of the six defendants.

2. The petition alleged that the plaintiff was maliciously shot and injured by the janitor of an apartment house while the plaintiff was present in the house as the guest of a tenant. The second count was based upon the theory that the janitor within the knowledge of the defendants, was a man of vicious and dangerous character, having a propensity to assault and injure others without cause, and that the defendants were negligent in retaining him as such employee after knowledge of this trait. This count of the petition was sufficient to state a cause of action against three of the defendants (the plaintiffs in error in Case No. 11884); and as to such defendants the court did not err in overruling their general demurrers to the petition.

3. The petition showed on its face that the three other persons who were joined as defendants neither had nor assumed any authority in the matter of employing or retaining as janitor the person who injured the plaintiff; and for this reason it did not in either count state a cause of action against these defendants. The general demurrer filed by these defendants was properly sustained.

No 11876:

Evins, Quillian & Evins, of Atlanta, for plaintiff in error.

Wm. P. Kennedy and Pearce Matthews, both of Atlanta, for defendants in error.

No. 11884:

Pearce Matthews and Wm. P. Kennedy, both of Atlanta, for plaintiffs in error.

Evins, Quillian & Evins, Hamilton Lokey, John M. Slaton, and Harold Hirsch & Marion Smith, all of Atlanta, for defendants in error.

BELL Justice.

According to the petition in this case, J. R. Henderson was maliciously shot and injured by the janitor of an apartment house, while present in the house as the guest of a tenant. He filed the present action for damages, naming in his petition as amended the following six persons as defendants: Nolting First Mortgage Corporation, D. L. Stokes & Company, Inc., D. L. Stokes, Fulton National Bank, P. H. Randall, Mrs. Bessie Brown Randall. As to the three defendants first named, the petition also contained prayers and allegations seeking equitable relief. The apartment house was the property of the estate of W. L. Randall, deceased, subject to a security deed in favor of Nolting First Mortgage Corporation, which company, as the petition alleges, was, as agent, in control of the house at the time of the injury, managing the same through its agents D. L. Stokes & Company, Inc., and D. L. Stokes. It is in part by reason of these alleged relationships that the first three of the defendants are named as such in the plaintiff's petition. The other three, Fulton National Bank, P. H. Randall, and Mrs. Bessie Brown Randall, were executors of the estate of W. L. Randall, deceased, and were originally sued both as individuals and as executors, but the plaintiff by amendment struck them as executors. The court overruled two general demurrers filed by the three defendants first mentioned, one of them having demurred separately and the other two jointly; and to this judgment these defendants excepted. The court sustained a general demurrer filed together by the other three defendants, and to this judgment the plaintiff excepted. All parties in the court below were made parties to each bill of exceptions. As to appellate jurisdiction, contrast Burgess v. Ohio National Life Ins. Co., 177 Ga. 48, 169 S.E. 364.

The petition was in two counts. The first count alleged no actual negligence or wrong on the part of any defendant, but claimed merely that each of the defendants was liable for the acts of the janitor, in virtue of the relation of master and servant, the plaintiff contending that the janitor was the servant of each and all of the defendants, and that his act in shooting the plaintiff was committed within the scope of his employment as such. The second count was identical with the first, except that additional allegations were made. A statement of the second count will therefore be sufficient to cover both counts. The second count as construed by the plaintiff is based upon the theory that the janitor, within the knowledge of the defendants, was a man of vicious and dangerous character, having a propensity to assault and injure others without cause, and that the defendants were negligent both in employing and in retaining him, after knowledge of this trait. Whether or not the allegations of the second count actually develop this theory as to all or any of the defendants, and whether, if so, a cause of action is stated as to such defendants, are among the questions for decision. In order to elucidate these questions, the allegations of the second count must be stated in further detail, although, for the reason indicated, no additional statement as to the first count is necessary. Accordingly, unless the contrary appears, the terms hereinafter used to denote the allegations, including the word 'petition' and similar expressions, will refer to the second count only.

The petition as amended alleged the following: Prior to April 1934, W. L. Randall purchased, subject to an outstanding security deed, described premises in Atlanta, Ga., on which an apartment house known as 105 Rumson road was situated. The security deed was held by Nolting First Mortgage Corporation, as grantee, to secure a large sum of money, the payment of which Randall assumed. Having become in default as to principal, interest, and taxes, 'the said Randall did execute a certain assignment of all rents accruing from said premises to the said Nolting Company, and did appoint as his agent for the immediate supervision and management of said properties the said Nolting Company, acting by and through its duly authorized' local agents Johnston & Johnston, a partnership engaged in the real estate business 'and in the management of said premises in particular for the said Nolting Company and for the said W. L. Randall. Pursuant to said arrangement all lease contracts entered into with tenants occupying apartments on said premises were entered into and executed in the name of W. L. Randall as owner until the time of his demise, and thereafter, including the time at which plaintiff received his described injuries, in the name of W. L. Randall Estate as owner and lessor.' 'In the course of the execution of the terms of said rent assignment, defendant Nolting Company, for its own benefit, as well as for the benefit of said W. L. Randall, his successors, administrators, executors, and assigns, acting as his duly authorized agent, all as shown in said rent assignment, did, acting by and through its local agents as aforesaid, exercise supervising and management of said described premises, including the janitor thereof, one Pete Brown, colored, the exercise of whose duties was confined to said premises under the control, direction, and management of the defendants herein, acting as aforesaid, paid the wages of said janitor and other workmen in and about the premises, let local contracts for the making of repairs on said premises and renovation and improvements in the respective apartments therein as desired by the tenants, and agreed upon by said local agents, collected all rents accruing from said premises, applying the same to the payment of interest and reduction of principal, etc., of the said indebtedness hereinbefore described, paid all the upkeep and maintenance of said premises, together with insurance and taxes assessed thereon by the State of Georgia and County of Fulton, and agreed to remit to the said W. L. Randall any sums in excess of the items herein enumerated. During the month of March, 1935, the said W. L. Randall departed this life and said Fulton National Bank, P. H. Randall and Mrs. Bessie Brown Randall, defendants herein, were duly designated as executors of the last will and testament of said W. L. Randall, and thereafter duly qualified as such and entered upon the duties of said office, ratifying and continuing in full force and effect the terms and conditions of said rent assignment hereinbefore described as having been executed by said W. L. Randall, deceased, in favor of said defendant, Nolting Company, and said Nolting Company continued thereafter to act as theretofore in the supervision and management of said described premises as the duly authorized agent of said named executors, successors to the said W. L. Randall. * * *' On August 22, 1935, the Nolting Company took the management of this apartment house from Johnston & Johnston, and placed it with 'its local agent, D. L. Stokes and/or D. L. Stokes & Co., Inc.' and 'said defendants, D. L. Stokes and D. L. Stokes & Company, Inc., did assume direction and management of said...