Southern Grocery Stores v. Herring, 28306.

• Court: United States Court of Appeals (Georgia)
• Citation: 11 S.E.2d 57,63 Ga.App. 267
• Docket Number: 28306.
• Parties: SOUTHERN GROCERY STORES, Inc., et al. v. HERRING.
• Decision Date: 28 September 1940

11 S.E.2d 57

63 Ga.App. 267

SOUTHERN GROCERY STORES, Inc., et al.
v.
HERRING.

No. 28306.

Court of Appeals of Georgia, Division No. 1.

September 28, 1940

Jones, Powers & Williams, of Atlanta, for plaintiffs in error.

G. Eugene Ivey and Irving S. Nathan, both of Atlanta, for defendant in error.

BROYLES, Chief Judge.

Henry Herring sued Robert E. Chapman and Southern Grocery Stores, Inc., to recover damages for an alleged tort. The court overruled the defendants' general demurrer and grounds 2 and 3 of their special demurrer to the petition, and both defendants excepted to that judgment.

By paragraph, the substance of those parts of the petition necessary to be considered in determining the questions at issue is as follows: 4. On July 15, 1939, the plaintiff and other employees of Southern Grocery Stores, Inc., went on a strike "upon the refusal of *** Southern Grocery Stores Inc., to sign a *** contract with his union covering wages, hours, and working conditions." 5. On [11 S.E.2d 58] or about July [63 Ga.App. 268] 25, 1939, "plaintiff was walking on the public sidewalk in front of a store belonging to *** Southern Grocery Stores Inc., located at 341 Peters Street, S. W., Atlanta, Georgia, and was carrying a sign calling the attention of the public to the strike and refusal of the Southern Grocery Stores Inc., to sign a contract with his union, and was causing no disturbance while doing this legal picketing." 6. At said time Robert E. Chapman was the manager of said store. 7. Chapman's duties as such manager were "in general to supervise and operate said store, obtain business, and further the interest and welfare of his employer." 8. While plaintiff "was picketing in front of said store ***, Chapman, acting in the scope of his duties as manager of said store and in behalf of Southern Grocery Stores Inc., and in and about its business in an effort to deter plaintiff from picketing *** said store, placed large quantities of black pepper on the sidewalk and deliberately swept same into the face of the plaintiff, and also poured out large quantities of ammonia on said sidewalk, so that the same would get into the eyes, lungs, and nostrils of plaintiff." 9. That as a result of "the willful and malicious conduct of *** Chapman, the black pepper and ammonia entered the plaintiff's eyes, nostrils and lungs, causing an irritation and infection of plaintiff's eyes, nostrils and lungs, and causing plaintiff to endure excruciating pain and suffering." 10. That all of the injuries sustained by plaintiff are permanent in character. 11. That Chapman, in the perpetration of the above described willful and malicious wrong against the plaintiff, "was in the discharge of his duties of his said master and acting in furtherance of his employer's business *** and was acting in the course of and within the scope of the business of the Southern Grocery Stores Inc." 12. That the plaintiff did nothing other than as stated herein to provoke the wanton attack made by the said Chapman. 13. That the injuries and damages sustained by the plaintiff "were the proximate and direct result of the wrongful conduct of the defendants." 14. Plaintiff claims "punitive and exemplary damages for this wanton and malicious attack ***."

The defendants' demurrer to the petition is substantially as follows: 1. The petition sets out no cause of action. 2. Defendants demur specially to paragraphs 4 and 5 and to each allegation of each paragraph separately, for that the same are irrelevant and [63 Ga.App. 269] immaterial to any cause of action alleged. 3. Defendants demur to paragraphs 8, 9, 10 and 11 of plaintiff's petition and to each allegation thereof separately and move to strike the same, for that the same are conclusions of the pleader, unsupported by sufficient allegations of fact, and are irrelevant and immaterial to any cause of action alleged and are too vague, indefinite and uncertain, and it does not appear how or wherein it was any part of the duty of Chapman to undertake to deter plaintiff from picketing the store, or to use the methods alleged in any effort to so deter him, and it does not appear how much pepper and ammonia were put on the sidewalk, and it does not appear that there was anything to prevent plaintiff from seeing that Chapman was putting the pepper and ammonia on the sidewalk and avoiding the consequences thereof by ordinary care, and that the allegations that the ammonia and pepper entered plaintiff's eyes and nostrils and lungs, causing irritation and infection and pain and suffering, do not show how long said irritation or suffering continued, or the extent thereof, and it does not appear how said alleged act of Chapman "was in the discharge of his duties or in the furtherance of his employer's business, or in the course or within the scope of that business."

We are satisfied that paragraphs 4 and 5 of the petition are not "irrelevant and immaterial," as charged in paragraph 2 of the demurrer. Neither are paragraphs 8, 9, 10, and 11 subject to that part of paragraph 3 of...