Parry v. Davison-Paxon Co.
| Decision Date | 13 September 1952 |
| Docket Number | DAVISON-PAXON,No. 34132,No. 1,34132,1 |
| Citation | 73 S.E.2d 59,87 Ga.App. 51 |
| Parties | PARRY v.CO |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The trial court did not err in sustaining the general demurrer and dismissing the plaintiff's petition.
Mrs. Vaughn T. Parry sued Davison-Paxon Company in the Superior Court of Richmond County for damages and alleged substantially as follows: The defendant, a corporation, owns and operates many large department stores, and operates in connection with its business delivery motor trucks, and makes deliveries of goods and merchandise sold at the stores. The plaintiff, on an afternoon betwen the hours of one and two, had undressed and was asleep in the debroom in the rear of her home. At that time the plaintiff was awakened by an unusual noise coming from her living room in the front of her home. The noise continued for some minutes while she was dressing. Upon leaving her bedroom she walked up to the living room and upon reaching the door of the living room she saw two large Negro men standing within a few feet of her. She realized that the two Negro men had forced their entrance into her home, and that their obvious purpose was either to rob her home or commit some grave offense against her person. All of the doors to the plaintiff's home had been locked before she retired. The plaintiff was so frightened, alarmed and upset by the presence of the two Negro men, that she fainted and would have fallen to the floor except for the fact that the two Negro men thereupon left her home hastily through the front door. The plaintiff had securely locked the front door before she retired, and the two Negro men had forced their way through the door by the use of some metallic bar, all of which appears from the scraped and torn woodwork on the door and the focing of the door. The two Negro men were at the time employees of the defendant, and were driving one of the defendant's trucks to deliver goods sold by the defendant, in the course of and within the scope of their employment. The plaintiff is advised and alleges that the defendant had sold, and its two employees were delivering, a small mahogany table to one L. R. Jones or his wife, residing at 2342 Frankling Street. In leaving the plaintiff's home the two employees left the table, which bore a tag which had printed thereon the name and address of the defendant and the name of L. R. Jones and his address. The employees were using the table as a pretext and scheme to vindicate and exculpate them in their unlawful acts in entering the plaintiff's home, in case they happened to be caught and apprehended. The defendant was on said day duly informed of the criminal acts of its employees, and the manager stated that he would promptly take action against the employees, and that he would see that justice was done. Neither the defendant, nor its manager, has taken any action, and the two Negro men are still retained as employees. The defendant by its non-action is seeking to justify the unlawful acts, in its effort to avoid liability in the case. On the day of the commission of the unlawful acts by the employees, the defendant was fully informed of their conduct, but the defendant has condoned and ratified the unlawful acts. On said date and at the time of employing the two truck drivers, the defendant knew that they were wholly unreliable criminal characters, and that they were likely to commit said acts, or by the exercise of ordinary care and diligence the defendant could have easily ascertained their unreliable character. The defendant was guilty of gross negligence in employing the two truck drivers, and in retaining them, both before and after the commission of the unlawful acts. At the time the defendant's employees forced their way into her home, she was pregnant and in a very delicate condition, and the acts and conduct of the defendant, acting by and through its employees, caused the plaintiff to suffer a complete nervous collapse from which she has never recovered. The plaintiff has suffered, and will continue to suffer great mental torture, which has seriously affected her health and well-being. She is now advised that she may have a miscarriage as the result of the acts and conduct of the defendant, acting by the through its employees. The plaintiff has been damaged by the defendant in the just and full sum of $10,000 and claims exemplary damages in the sum of $2500.
The defendant demurred generally and specially to the petition. The grounds of the general demurrer are as follows: (1) The plaintiff's petition sets out no cause of action against this defendant; (2) It shows on its face that even if the alleged acts of the defendant's employees were proved to be true, the acts would be outside the scope of their employment by this defendant and this defendant would not be legally liable for such acts of its agents; (3) It shows on its face that no physical injury was caused by the acts of the defendant's employees such as would authorize an action in tort by the plaintiff as against this defendant; and (4) It shows on its face that the defendant's employees were guilty of no act of negligence for which the defendant would be liable.
The demurrer was sustained on the general grounds and the petition dismissed. To this judgment the plaintiff excepted.
Paul T. Chance, Augusta, Winfield P. Jones, Atlanta, for plaintiff in error.
Hull, Willingham, Towill & Norman, Augusta, for defendant in error.
WORRILL, Judge (after stating the foregoing facts).
1. In Falls v. Jacobs Pharmacy Co., 71 Ga.App. 547, 31 S.E.2d 426, the plaintiff, a former employee of the defendant's who was at the time of the alleged injury employed by Walgreen Company, sought to hold the defendant liable for the action of one of its store managers, who allegedly accosted her, in the store, in a voracious and abusive manner, loud enough to be heard throughout the store, demanded to know what she was doing in the store, and thereupon unceremoniously pushed her to the door and not of the door, teiling her to go to Walgreen's store where she belonged, and to stay away from Jacobs Pharmacy. In affirming the judgment of the trial court in sustaining the defendant's general demurrer this court held, 71 Ga.App. on page 549, 31 S.E.2d on page 427, as follows: ...
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