Pope v. Seaboard Air Line R. Co.
| Decision Date | 14 July 1953 |
| Docket Number | No. 1,No. 34677,34677,1 |
| Citation | 77 S.E.2d 55,88 Ga.App. 557 |
| Parties | POPE v. SEABOARD AIR LINE R. CO. et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The specific averments of the first count of the petition show that the employee of the defendant railroad company was not acting in the prosecution and within the scope of the railroad's business at the time he shot and killed the plaintiff's husband.
2. The second count of the petition set out a cause of action, based on the defendant railroad company's negligence in retaining in its employment as a detective and investigator and in furnishing a pistol to one who was known to the employer to be of a violent and ungovernable disposition with a propensity to assault others without cause, and who without provocation shot and killed the plaintiff's husband after going to his house to obtain information about an applicant for employment with the defendant railroad company.
3. The court did not err in sustaining the defendant railroad company's general demurrer to the first count of the petition, but should have overruled its demurrer to the second count.
Mrs. Rose Marguerite Pope brought an action for damages against Seaboard Air Line Railroad Company and J. R. Davis in Bartow Superior Court. Her petition was in two counts, and the allegations of the first count are substantially as follows: The plaintiff is the widow of Raymond Pope, who came to his death by reason of the wrongful acts of the defendants on December 1, 1951, in Bartow County, Georgia. The plaintiff's husband was employed by the defendant railroad company as a flagman at the time of his death, and on the night of December 1, 1951, the defendant Davis went to Cartersville, Georgia, and to the home of the plaintiff and her husband on the defendant's business and within the scope of his employment as an investigator and detective. Davis sought information from the plaintiff's husband about a person who had applied for a job with the railroad company and who was under investigation by the defendant and its agent, Davis. Davis was making a routine investigation. The plaintiff's husband drove him to a hotel in Cartersville and, after parking Davis' car in front of the hotel, went around to assist Davis into the hotel, but Davis pulled out his gun and shot and killed the plaintiff's husband, without provocation or justification. Davis was then acting for and on behalf of the defendant railroad company and within the scope of his employment. He had come to the plaintiff's home to make inquiry of her husband and to find out what information the plaintiff's husband could give him concerning an applicant for employment with the defendant railroad company. Davis was unable to drive his car back to the hotel where he was staying, and it became necessary for the plaintiff's husband to drive him back to his hotel. There was no altercation or fight between the plaintiff's husband and Davis. Davis was employed by the defendant railroad company as a detective and investigator with headquarters in Atlanta, Georgia; and he traveled from city to city in an automobile with his expenses of travel, room and board being paid by the defendant railroad company when he was away from Atlanta. On December 1, 1951, the defendant Davis was on a business trip on behalf of his employer. He left Cedartown in the morning and went to Rockmart and to Taylorsville and then to Cartersville. Davis had no definite hours in which to perform his duties of investigating for the defendant railroad company, and his visit to the home of the plaintiff's husband was at night. The shooting occurred when the plaintiff's husband had driven Davis to the hotel where he was to spend the night before returning to Atlanta to make his report, and before Davis got out of the car parked in front of the hotel, he killed the plaintiff's husband. It was Davis' further duty in connection with the investigation made in Cartersville to return to Atlanta and to make a report to the defendant railroad company, which had instructed Davis to make the Cartersville investigation, and the trip to Cartersville was made by Davis for that purpose and pursuant to instructions given him by his employer.
In the second count of her petition, the plaintiff alleged as follows: J. R. Davis was a man of violent and ungovernable disposition, having a propensity to bully, assault, and injure others without cause. The defendant railroad company through its agents had full knowledge of the dangerous and violent temper of the defendant Davis. Davis was a chronic alcoholic and stayed constantly under the influence of alcohol, during which times he was particularly violent and ungovernable, and he assaulted and picked fights with others. All of this was well known to the defendant railroad company and its agents. Despite its knowledge of the dangerous and violent character of Davis, of his drinking habits, and of the fact that he stayed constantly under the influence of alcohol, the defendant railroad company continued to retain Davis as an employee and to send him out to investigate for them, arming him with a pistol and knowing he would carry this pistol about his person. The death of the plaintiff's husband [under circumstances as set out in the first count] was caused by the wrongful, unprovoked assault, and shooting by Davis jointly with the wrongful acts of the defendant railroad company in continuing to employ Davis, who was known to be a violent and dangerous person, in the capacity of a detective, arming him and permitting him to carry a dangerous weapon about his person after knowing of his vicious propensities and after knowing that he drank intoxicating liquors and frequently became intoxicated while carrying the weapon authorized and furnished by the defendant railroad company while Davis was doing detective and investigation work for it. Davis was employed as a detective under the immediate supervision and direction of the Supervisor of Property Protection, L. L. Collins, and the defendant railroad company through its agent Collins had knowledge of the fact that Davis customarily carried a pistol while performing his duties, as well as knowledge of his constant drinking while on duty and of his vicious propensities as described.
Both counts were brought for the full value of the life of the plaintiff's deceased husband. The general demurrers of the defendant railroad company to both counts of the petition were sustained, and the petition was dismissed as to that defendant, and the plaintiff excepted.
Dudley Cook, Atlanta, Lewis & Lewis, Waynesboro, for plaintiff in error.
MacDougald, Troutman, Sams & Schroder, Atlanta, Jefferson L. Davis, Cartersville, for defendants in error.
1. Code, § 105-108...
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