Louisville & N.R. Co. v. Hudson
| Decision Date | 19 December 1911 |
| Docket Number | 3,246. |
| Citation | 73 S.E. 30,10 Ga.App. 169 |
| Parties | LOUISVILLE & N. R. CO. et al. v. HUDSON. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A railroad company is not liable in damages for a homicide committed by an employé, where the homicide was not committed in the prosecution of the business of the railroad and within the scope of his employment, but was his personal act in resenting a real or fancied insult.
Where the act of the employé in committing the homicide was one for which the master was not responsible, because it was an individual personal act of the employé, not within the scope of his employment, the fact that the employé was of high and ungovernable temper and habitually carried a pistol, would be wholly immaterial and irrelevant. The test for determining a master's liability for an act of the servant is not the servants bad disposition or vicious habits, but whether the act was within the scope of his employment and was connected with the prosecution of the master's business.
(Additional Syllabus by Editorial Staff.)
A corporation is a "person," within the meaning of Civ. Code 1910, § 4413, relating to the liability of the master for the torts of the servant.
Error from City Court of Richmond County; Wm. F. Eve, Judge.
Action by Pearl Hudson against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.
Jas. B. & Bryan Cumming and J. M. Hull, Jr., for plaintiff in error.
A. L Franklin, for defendant in error.
HILL C.J. (after stating the facts as above).
The courts generally have found some difficulty in holding the master liable for a homicide intentionally committed by his servant, in the absence of any express command on the part of the master, and the majority of adjudications seem to favor the theory that in the absence of express authority the master is not liable in damages for the deliberate intentional, and willful homicide committed by his servant. 1 Thomp. Neg. § 571. But, whatever may be the adjudications in other jurisdictions on this subject, it is settled by the statute law of this state that the master would be liable where the homicide was committed by the servant in the prosecution and within the scope of the master's business, whether it was actually committed by the command of the master, or was the result of negligence on the part of the servant, or his voluntary act.
Civil Code, § 4413, provides that "every person shall be liable for torts committed by his servants by command, or in the prosecution or within the scope of his business, whether the same be by negligence, or voluntary." And section 2780 declares that "a railroad company shall be liable *** for damage done by any person in the employment or service of such company, unless the company shall make it appear that their agents were in the exercise of reasonable care and diligence, the presumption in all cases being against the company." A corporation, under the law, is a "person," in the meaning of the first section quoted, and the terms of the section apply to corporations as well as to natural persons, and the principle of law there announced is well settled by the adjudications of the courts. The difficulty is in the application of the general principle of law to the particular facts. In the great multitude of decisions made by the courts, applying the facts of the cases to the principle of law just announced, there is found much diversity of opinion and room for doubt; and, after all, the solution of the question is to be determined largely by the facts of each particular case, aided by the very best judgment of the court in making the application of the principle to those facts.
The master is not an insurer against wrongs perpetrated by his servants. It would be unjust to hold him responsible for these wrongs, unless they were done by his servant while he was in the performance of his master's business and was acting within the scope of his employment. The rule of liability in the case is based upon the old maxim, "Qui facit per alium, facit per se." and if the servant instead of doing that which he is employed to do, does something which he is not employed to do at all, and the act is not properly within the scope of his employment, it cannot be said that the master does the act by his servant. Mr. Thompson, in his work on Negligence (section 526), lays down the test by which to determine whether a servant acts within the scope of his employment. "The test is not that the act of the servant was done during the existence of the employment, that is to say, during the time covered by the employment, but whether it was done in the...
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