Mountain v. Southern Bell Tel. & Tel. Co.

• Decision Date: 19 May 1992
• Docket Number: No. A92A0190,A92A0190
• Citation: 421 S.E.2d 284,205 Ga.App. 119
• Parties: MOUNTAIN v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
• Court: Georgia Court of Appeals

Page 284

421 S.E.2d 284

205 Ga.App. 119

MOUNTAIN v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.

No. A92A0190.

Court of Appeals of Georgia.

May 19, 1992.

Reconsideration Denied July 23, 1992.

Certiorari Denied Oct. 2, 1992.

Edwards & Middleton, Lonzy F. Edwards, Macon, for appellant.

Jones, Cork & Miller, H. Jerome Strickland, H. Jerome Strickland, Jr., Macon, for appellee.

COOPER, Judge.

John Chandler ("Chandler"), an employee of appellee for 25 years, was sent to appellant's residence to reestablish her telephone service. Appellant alleges that after completing his work, Chandler raped her. Appellant brought an action against appellee under the theories of respondeat superior and negligent hiring and retention of Chandler as an employee. The trial court granted appellee's motion for summary judgment, concluding that appellee was not liable under either theory, and this appeal followed.

1. In her first, second and fourth enumerations of error, appellant contends the trial court erred in concluding that Chandler's actions were outside the scope of his employment as a matter of law and in misapplying Curtis, Inc. v. Kelley, 167 Ga.App. 118, 305 S.E.2d 828 (1983). Appellant argues that a genuine issue of fact remains as to whether or not Chandler was acting within the scope of his employment at the time he committed the rape. " 'OCGA § 51-2-2 provides: "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 are committed by negligence or voluntarily." "As construed in Frazier v. Southern Ry. Co., 200 Ga. 590, 593 (37 SE2d 774), 'The word "voluntarily" in § 105-108 (OCGA § 51-2-2) will cover any or all motives or purposes of the wrongdoer, acting in the scope of his employment, which are not covered by "acts of negligence." The true test is not whether the tort was committed by reason of anger, malice or ill will, but whether or not it was committed in the prosecution and within the scope of the master's business. If the tort be committed, not by reason of the employment, but because of matters disconnected therewith, the master would not be liable.' (Cit.)" ' [Cit.]" Coley v. Evans Mem. Hosp., 192 Ga.App. 423, 423-424, 385 S.E.2d 100 (1989). The alleged rape was not related to Chandler's employment and did not further appellee's business. It was a purely personal act for which appellee cannot be deemed vicariously liable. Coley v. Evans Mem. Hosp., supra; Southern Bell Tel. etc., Co. v. Sharara, 167 Ga.App. 665, 667(2), 307 S.E.2d 129 (1983). Despite appellant's insistence that Chandler was within the scope of his employment because he gained entry into appellant's home in the prosecution of appellee's work, there is no evidence which shows that Chandler was serving appellee at the time of the injury, i.e., during the commission of the rape. Curtis, Inc. v. Kelley, supra 167 Ga.App. at 119, 305 S.E.2d 828. "The mere fact that the assault occurred during a time of ostensible employment in the [appellant's] home is not dispositive on the question of scope of employment. [Cit.]" Southern Bell Tel., etc., Co. v. Sharara, supra, 167 Ga.App. at 667-668, 307 S.E.2d 129. Appellant argues further that Southern Bell Tel., etc., Co. v. Sharara, supra, is distinguishable because in that case, the employee submitted an affidavit in which he admitted "that his acts were unrelated to the task of installing the phone and were completely personal in nature." Id. at 667, 307 S.E.2d 129. Appellant emphasizes that no such affidavit exists in the instant case. The evidence shows that the work performed on appellant's phone lines did not require Chandler's presence inside appellant's home and that when the rape allegedly occurred, Chandler had already completed the job. In her brief to this court, appellant even recognized that the rape was a deviation from Chandler's work-related activity. Thus, the trial court did not err in granting summary judgment based on the theory of respondeat superior.

2. Appellant next contends that the trial court erred in granting summary judgment on the issue of negligent retention because appellee knew or should have known of Chandler's dangerous propensities. Appellant argues that Chandler had a pattern of absenteeism during the last ten years of his employment which was not properly documented by appellee and therefore not addressed according to appellee's disciplinary rules. Appellant further contends that Chandler...