Jones v. Reserve Ins. Co.

• Decision Date: 28 February 1979
• Docket Number: No. 56930,56930
• Citation: 253 S.E.2d 849,149 Ga.App. 176
• Parties: JONES v. RESERVE INSURANCE COMPANY et al.
• Court: Georgia Court of Appeals

Page 849

253 S.E.2d 849

149 Ga.App. 176

JONES v. RESERVE INSURANCE COMPANY et al.

No. 56930.

Court of Appeals of Georgia.

Argued Oct. 31, 1978.

Decided Feb. 28, 1979.

E. Graydon Shuford, Decatur, for appellant.

Freeman & Hawkins, H. Lane Young, Sam F. Lowe, Jr., Dunaway, Haas & Broome, Eugene Hope, Atlanta, for appellees.

SHULMAN, Judge.

At the time of the incidents giving rise to this litigation, appellant was attending a meeting of the Southeastern Claimsmen Association at the Marriott Hotel. Appellant, a former employee of appellee-Reserve Insurance Company, was not in Reserve's employ at the time of the convention. Among those attending the meeting were two employees of Reserve, although Reserve did not require such attendance of its employees. After the meeting, an altercation developed outside the hotel between one Clarke, who was apparently in some supervisory capacity with Reserve, and appellant over the return of a book which appellant contended Clarke had not returned to him. Some physical violence ensued among appellant, Clarke, and one Manko, also an employee of Reserve, who had accompanied Clarke. Apparently some injuries were sustained by all parties to the affray. Appellant's claim against Reserve was predicated on the contention that the employees of Reserve committed a tort upon him in the prosecution and within the scope of the employer's business. The trial court granted summary judgment in favor of appellee-Reserve Insurance Company. We affirm.

1. Code Ann. § 105-108 provides in pertinent part: "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."

"In Colonial Stores v. Sasser, 79 Ga.App. 604, 54 S.E.2d 719, this court said: 'In determining the liability of the master for the negligent or willful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master's business for accomplishing the ends of his employment.' " Central of Ga. R. Co. v. Roberts, 94 Ga.App. 600, 612, 95 S.E.2d 693, 702, revd. on other grounds 213 Ga. 135, 97 S.E.2d 149. See also Bates v. Southern R. Co., 52 Ga.App. 576, 183 S.E. 819, requiring not only proof of the agency, but also proof of the connection of the act with the employment.

The evidence submitted in support of Reserve's motion for summary judgment shows that the employees of Reserve were not acting within the scope of or in the prosecution of the business of appellee at the time of the incident on which this action is based. In the face of Reserve's evidentiary showing, appellant did not produce evidence which connected the incident with Reserve's business or which showed that his alleged assailants had acted by command of Reserve.

2. It is also apparent from the depositions that the incident in question involved a personal matter only and did not involve the employer. "Thus it will be seen that in order for the master to be liable for torts committed by his servant, the tort-feasor must either have acted by command of the master or the tortious act must have been perpetrated in the prosecution and within the scope of...