Southern Bell Tel. & Tel. Co. v. Sharara
| Decision Date | 15 July 1983 |
| Docket Number | No. 65968,65968 |
| Citation | 167 Ga.App. 665,307 S.E.2d 129 |
| Parties | SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. SHARARA. |
| Court | Georgia Court of Appeals |
George B. Haley, Jr., Charles M. Dalziel, Jr., Savannah, for appellant.
Stephen L. Goldner, Hugh H. Lowery, Atlanta, for appellee.
Lambert Priest was employed as an installer-repairman by defendant-appellant, Southern Bell Telephone & Telegraph Company ("Southern Bell"), for eleven and one-half years. On October 15, 1980, Priest installed a business phone in the residence of plaintiff-appellee. After completing installation of the phone, Priest physically attacked appellee. Priest was subsequently charged with and pled guilty to the crime of aggravated assault. Appellee brought the instant action against both Priest and Southern Bell, seeking a recovery against the latter under theories of respondeat superior and negligence in the hiring or retaining Priest as an employee. Pursuant to a grant of a petition for interlocutory review, appellant Southern Bell appeals from the denial of its motion for summary judgment.
1. Appellant contends that, as a matter of law, it cannot be held liable for the negligent hiring or retention of Priest as an employee, there being absolutely no evidence that appellant knew or should have known of Priests' criminal or violent propensities. The evidence is uncontroverted that Priest had never been convicted of any crime except minor traffic violations. Priest was required by appellant to complete an employment application in which he was to disclose all criminal offenses, and which was then confirmed for accuracy and truthfulness by appellant's security department. During the eleven and one-half years of his employment with appellant, no complaints were lodged by customers against Priest, and periodic evaluations of him by appellant indicated his work was more than satisfactory. In fact, Priest had been commended by several customers for his work.
Edwards v. Robinson-Humphrey Co., 164 Ga.App. 876, 880, 298 S.E.2d 600 (1982). Appellee asserts that appellant knew or should have known that Priest was having marital difficulties and therefore could be held liable for negligent employment. "To hold, as [appellee] argues, that a master may be found liable for the negligent employment of a servant who subsequently commits tortious and criminal acts solely because the employer knew or should have known that the servant [was having marital problems] would be tantamount to holding that there is no longer any proximate causation requirement in negligent employment actions in this state." Edwards v. Robinson-Humphrey Co., supra at 880, 298 S.E.2d 600.
Appellee further asserts that, although appellant had no actual knowledge of Priest's dangerous propensities, appellant would have had such knowledge if Priest had been required to submit to periodic interviews or psychological tests designed to reveal his aggressive, hostile and violent propensities. We have found no statute or court decision which would authorize the establishment of a blanket requirement that an employer submit all of its employees to a series of periodic psychological tests or interviews to determine whether any employee has developed or is developing negative or antisocial propensities. Where, as in the instant case, an employee has absolutely no background of prior criminal or dangerous propensities and, during his employment for a substantial number of years, he has had a good work record without a single complaint from customers, his employer may not be found negligent in hiring and retaining such employee because of a failure to require such employee to submit to psychological testing or interviews.
In the case at bar, there is absolutely no evidence that appellant failed to exercise ordinary care in the selection and retention of Priest. OCGA § 34-7-20 (Code Ann. § 66-301). Contrary to appellee's assertions, C.K. Security Systems v. Hartford Acc. & Indem. Co., 137 Ga.App. 159, 161, 223 S.E.2d 453 (1976) does not support the conclusion that the circumstances of the employment were such that a greater amount of care in the selection and retention of Priest was required from appellant in order to meet the standard of care required by law. In C.K. Security Systems, Inc., unlike the instant case, the very purpose of the service provided by the defendant was the protection of persons and property. Appellant was entitled to summary judgment on the issue of negligent hiring or retention of Priest.
2. Appellant also asserts that it cannot be held liable for Priests' actions on a theory of respondeat superior because there exists no genuine issue of material fact as to whether Priests' assault on appellee was in any way connected with his employment.
OCGA § 51-2-2 (Code Ann. § 105-108) provides in part: "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." This court has repeatedly held that " '[i]n determining the liability of the master for the negligent or wilful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master's business for accomplishing the ends of his employment.' " McGhee v. Kingman & Everett, Inc., 49 Ga.App. 767(2), 176 S.E. 55 (1934); See also Colonial Stores v. Sasser, 79 Ga.App. 604, 54 S.E.2d 719 (1949); Jones v. Reserve Ins. Co., 149 Ga.App. 176, 253 S.E.2d 849 (1979).
In the instant case the evidence is clear that Priest was not acting "within the scope of or in the prosecution of the business of appellee at the time of the incident on which this action [was] based." Jones v. Reserve Ins. Co., supra at 177, 253 S.E.2d 849. Priest submitted an affidavit to the effect that his acts were unrelated to the task of installing the phone and were completely personal in nature. See Community Theatres Co. v. Bentley, 88 Ga.App. 303, 76 S.E.2d 632 (1953); Sparks v. Buffalo Cab Co., 113 Ga.App. 528, 530, 148 S.E.2d 919 (1966). Compare Miller v. Honea, 163 Ga.App. 421, 294 S.E.2d 629 (1982). The mere...
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