Planters Cotton Oil Co. v. Baker

• Decision Date: 28 September 1935
• Docket Number: 10517.
• Parties: PLANTERS COTTON OIL CO. et al. v. BAKER.
• Court: Georgia Supreme Court

181 S.E. 671

181 Ga. 161

PLANTERS COTTON OIL CO. et al. v. BAKER.

No. 10517.

Supreme Court of Georgia

September 28, 1935

Syllabus by the Court.

Sections 3603 and 4413 of the Civil Code of 1910 (Code 1933, §§ 4-312, 105-108) stand in pari materia, and must be construed together and harmonized. Section 3603 does not mean that the principal can not be held liable for the willful trespass of his agent unless it is committed by his express command or express assent; but the proper meaning is that if the agent committed the trespass in the prosecution of the principal's business, it is by implication of law committed by the command of the principal or with his consent. The liability provided by this section is substantially the same as that stated in section 4413.

Certified Questions from Court of Appeals.

Suit between the Planters Cotton Oil Company and others and Jerome Baker. To review the judgment, the first-designated parties brought error to the Court of Appeals, which certifies questions.

Questions answered.

RUSSELL C.J., dissenting in part.

Harry L. Greene and Neely, Marshall & Greene, all of Atlanta, and Steve F. Mitchell, of Tifton, for plaintiffs in error.

John Henry Poole, of Tifton, for defendant in error.

RUSSELL Chief Justice.

The first question must be answered in the negative. Sections 3603 and 4413, Civ. Code 1910, being in pari materia, must be construed together. Each is supplemental of the other. Consequently there should not "be made any distinction between the relationships of principal and agent and that of master and servant, so as to make different rules of liability apply, according to the nature of the relationship." Section 4413 is not contrary to section 3603, because section 3603 properly construed does not mean that the principal is not liable for the willful trespass of his agent unless done by his express command or assent, but he may be liable if the trespass was committed by his implied command or implied assent, and if committed within the scope of the agency, the implication will arise as a matter of law. The first question being answered in the negative, no instruction upon the second question is required.

The third question is answered in the affirmative, because if the tort of the agent is committed in the prosecution and within the scope of the principal's business, it is done with the implied command or assent of the principal, and in such case it is unnecessary to make proof of an express command or assent. A principal may be liable for the willful tort of his agent, done in the prosecution and within the scope of his business, although it is not expressly shown that he either commanded the commission of the willful act or assented to it. Since the determinative question in the case is whether the act is done "in the prosecution and within the scope of" the principal's business, there are many cases where it has been held that either command or assent can properly be implied, or that the principal was negligent in the choice of his agent. Of course, the latter instance does not come within the question now propounded.

The foregoing conclusions necessarily follow from the Code of 1863, §§ 2179, 2181, 2904, carried into the Civil Code of 1910 as sections 3601, 3603, 4413, respectively, and in the Code of 1933 as sections 4-311, 4-312, and 105-108; and from Gasway v. Atlanta & West Point Railroad Co., 58 Ga 216; Turner v. Western & Atlantic Railroad, 69 Ga 827; Western & Atlantic Railroad v. Turner, 72 Ga 292, 53 Am.Rep. 842; Savannah Electric Co. v. Wheeler, 128 Ga. 550, 58 S.E. 38, 10 L.R.A. (N. S.) 1176. Each of these decisions was concurred in by all the Justices, and they are controlling, even if some later decisions may be contrary thereto, as for instance Wong Jung v. Southeastern Fair Association, 151 Ga. 85, 105 S.E. 847, affirming on certiorari 24 Ga.App. 707, 102 S.E. 32. The decision in Lockett v. Pittman, 72 Ga. 815, if contrary to older decisions cited above, must also yield thereto as authority. In the Turner Case, supra, it was said that the two Code sections mentioned must be construed in harmony with each other and both allowed to remain of force in the cases to which they apply. We call attention to the fact that in that decision the conductor, for whose voluntary assault upon an intending passenger the company was held liable, was several times referred to as the agent of the company. The facts stated in the question certified will distinguish the present case from Murphey v. New South Brewery & Ice Co., 145 Ga. 561, 89 S.E. 704. An examination of the record of file in that case discloses the fact that the petition contained no allegations to show that the agent, at the time of the assault, was acting in the prosecution of his principal's business, or within the scope of his employment. Other cases similar to the Murphey Case, and distinguished in like manner from the present case, are Waller v. Southern Ice & Coal Co., 144 Ga. 695, 87 S.E. 888, and Greeson v. Bailey, 167...