Jones v. Dixie Ohio Exp., Inc., 42918

• Decision Date: 11 July 1967
• Docket Number: No. 1,No. 42918,42918,1
• Citation: 116 Ga.App. 155,156 S.E.2d 388
• Parties: Robert D. JONES v. DIXIE OHIO EXPRESS, INC., et al
• Court: Georgia Court of Appeals

Page 388

156 S.E.2d 388

116 Ga.App. 155

Robert D. JONES v. DIXIE OHIO EXPRESS, INC., et al.

No. 42918.

Court of Appeals of Georgia, Division No. 1.

July 11, 1967.

Syllabus by the Court

A petition alleging that the defendant servant committed upon the plaintiff a willful assault and battery while the servant was engaged in the prosecution of the defendant employer's business was good as against a general demurrer.

Robert D. Jones brought suit against Dixie Ohio Express, Inc. and its truck driver, Coleman Alexander, alleging that he, as a truck driver for Philpot Contractors, had parked its pickup truck at a loading platform at the rear of a building and was loading materials on it to be transported to another location, Alexander drove a truck of Dixie Ohio Express alongside the pickup and parked it. Plaintiff, being out of the pickup and on the ground, was assaulted by Alexander and beaten with a club 'in order to expedite and benefit the defendant, Dixie Ohio Express, and in furtherance of its business.' It was alleged that Dixie Ohio Express is a competitor of Philpot Contractors, both being engaged in the hauling of merchandise for hire. Plaintiff alleges that the bruises inflicted on him by the club were accomplished 'by the assault of these defendants, acting in concert for the benefit of the business of the defendant, Dixie Ohio Express,' and that 'the defendants did jointly and severally commit said assault and battery upon the person of the plaintiff.'

Defendants demurred generally and specially. Upon hearing, the general demurrer was sustained, with 20 days allowed in which to amend. No amendment was tendered or filed and after expiration of the 20 days an order was entered dismissing the petition. From that order plaintiff appeals.

Garland & Garland, Edward T. M. Garland, Atlanta, for appellant.

Nall, Miller, Cadenhead & Dennis, Thomas S. Carlock, Dennis J. Webb, Atlanta, for appellee.

EBERHARDT, Judge.

1. 'A master is liable for the willful torts of his servant, committed in the course of the servant's employment, just as though the master had himself committed them. This rule applies as well where the master is a corporation as where he is a private individual.' Central of Ga. Ry. Co. v. Brown, 113 Ga. 414, 416, 417, 38 S.E. 989, 84 Am.St.Rep. 250. But '(i)f a servant steps aside from his master's business for however short a time to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not liable.' Savannah Electric Co. v. Hodges, 6 Ga.App. 470, 471, 65 S.E. 322.

A general averment that the servant was acting in the prosecution of his master's business when the tort was committed, or in the commission thereof, is sufficient as against a general demurrer to state a cause of action. Savannah Electric Co. v. McCants, 130 Ga. 741(2), 61 S.E. 713; White v. American Security Co., 48 Ga.App. 370, 371, 172 S.E. 853; Jump v. Anderson, 58 Ga.App. 126, 127, 197 S.E. 644; Brown v. Union Bus Co., 61 Ga.App. 496, 6 S.E.2d 388; Gilbert v. Progressive Life Ins. Co., 79 Ga.App. 219, 53 S.E.2d 494.

The allegations of this petition, though skimpy, are sufficient to withstand a general demurrer in their present form. There are special demurrers, which, when ruled on, may place the matter in a different light. 'A tort committed by a servant while engaged in the master's business is not necessarily a tort committed in the course of his employment and in the prosecution of the master's business.' Ford v....