Gilbert v. Progressive Life Insurance

Under the allegations of the petition in this case, whether or not the employee of the defendants, at the time of the assault and battery on the plaintiff, was acting in the scope of his employment and in the prosecution of the employers' business is a question for the jury.

DECIDED MAY 12, 1949. D.C. Gilbert brought an action in the Superior Court of Troup County against Progressive Life Insurance Company and Progressive Fire Insurance Company for the tort of their agent, W. G. McClendon. The material allegations of the petition are as follows: "That on September 9, 1948, . . W. G. McClendon was a dual agent in charge of the business of both defendant companies and performing his duties as such; . . prior to September 9, 1948, the plaintiff had acted as dual agent for both defendant companies, writing and collecting for both . . and his compensation as agent was paid to him separately from each defendant company; a week or more prior to September 9, 1948, the plaintiff severed his connection with each defendant in an amicable manner, for the reason that on the basis of compensation paid him by the defendants he was unable to earn a satisfactory amount; . . the method of payment made by the defendants was to pay one week after the compensation was earned, and by reason thereof, at the time he severed his connection with the defendant, he was due to be paid the amounts he had earned the previous week, which would be due and payable one week hence; the defendants in paying its agents, including the plaintiff, checks would be mailed from Atlanta . . to . . W. G. McClendon in LaGrange, Georgia, who in turn, acting in his dual capacity for both companies, would deliver the checks from each company to the agents entitled thereto; . . on September 9, 1948, the plaintiff went to the defendant companies' office in LaGrange . . and . . W. G. McClendon was in charge of said office and performing his duties with the defendant companies. The plaintiff asked . . W. G. McClendon if his check had come from the defendant companies' office . . McClendon replied that they had not. The plaintiff then asked . . McClendon what the home address of the defendant companies was. McClendon gave to the plaintiff the address. Upon receiving this information, the plaintiff began to write down the address; when . . McClendon, then acting in the scope of the defendant companies' business, did then, without warning and without cause or justification, violently assault the plaintiff and strike the plaintiff violently with his fist about his mouth, face and head and also, then and there, did violently choke the plaintiff," which caused the plaintiff certain enumerated injuries and damage, and the plaintiff also prays for punitive damages.

The defendants filed their general demurrer to the petition, which was sustained, and the plaintiff excepted. The only question presented, the sufficiency of the petition to withstand general demurrer, is determinable by whether or not under the allegations the tort was committed in the prosecution and within the scope of the business of the defendant corporations. "Every person shall be liable for the torts committed by his servant . . in the prosecution and within the scope of his business whether the same shall be by negligence or voluntary." Code, § 105-108. The plaintiff alleged that, a week prior to the date of the assault and battery committed upon him, he had severed, upon amicable terms, his connection with the defendant corporations. It was the custom of the corporations to pay their agents, such as the plaintiff, one week after the compensation had been earned by mailing checks for their compensation to McClendon, who would deliver the checks to the agents entitled to them. On the date of the assault and battery, the plaintiff went to the offices of the defendant corporations where McClendon was in charge, and inquired if his check, which was due for the last week of his employment, had arrived. McClendon replied that the check had not arrived, and the plaintiff thereupon requested that he be given the address of the home offices. McClendon gave the plaintiff this information, but as the plaintiff was writing down the address, "McClendon,then acting in the scope of the defendant companies' business," set upon him inflicting the enumerated injuries.

A general averment in effect that the act of the employee was committed in the prosecution of the employer's business and within the scope of the employee's authority states traversable facts rather than a mere conclusion of law. Savannah ElectricCo. v. McCants, 130 Ga. 741 (2) (61 S.E. 713, Plumer v.Southern Bell Tel. Tel. Co., 58 Ga. App. 622, 625 (199 S.E. 353), White v. American Security Co., 48 Ga. App. 370,372 (172 S.E. 853), Georgia Fla. Ry. Co. v. Thigpen,141 Ga. 90, 94 (80 S.E. 626), Daniel v. Excelsior Auto Co.,31 Ga. App. 621, 624 (121 S.E. 692), and see also Atlanta SteelCo. v. Mynahan, 138 Ga. 668 (8) (75 S.E. 980).

While it is true that, where a general averment of that nature is amplified by specific allegations which plainly anddistinctly negative the general allegation that the act or acts complained of were in the prosecution of the employer's business and within the scope of the employee's authority, the specific allegations will prevail (McClure Ten Cent Co. v. Humphries,29 Ga. App. 524, 116 S.E. 54; Daniel v. Excelsior AutoCo., supra; Ogletree v. MacDougald Construction Co., 45 Ga. App. 128,163 S.E. 320), in the present petition there are no specific allegations which in fact or by inference negative the plaintiff's allegations that the assault and battery was committed in the prosecution of the employer's business and within the scope of the employee's authority. In the following cases, relied upon by the defendants' counsel, the petitions themselves contained allegations of fact such as to demonstrate clearly the purely personal origin of the torts; that is to say, the specific allegations negatived the general allegations that the acts complained of were within the scope of the employment, although the torts were committed during the time, or hours, of employment. Atlanta Coca-Cola BottlingCo. v. Brown, 46 Ga. App. 451 (167 S.E. 776); Plumer v.Southern Bell Tel. Tel. Co., supra; Southeastern Fair Assn. v. Wong Jung, 24 Ga. App. 707 (102 S.E. 32); Louisville Nashville R. Co. v. Hudson, 10 Ga. App. 169 (73 S.E. 30);Heath v. Atlanta Beer Distributing Co., 56 Ga. App. 494 (193 S.E. 73); Taff v. Life Ins. Co. of Georgia, 77 Ga. App. 836 (50 S.E.2d 154).

If the assault and battery grew out of McClendon's personal animosity for the plaintiff or grew out of some prior dispute or altercation between the two, it is not made to appear in the petition by allegation, inference, or otherwise. The petition shows rather that the plaintiff had terminated his employment upon amicable terms, and he had merely returned to the local office of which McClendon was in charge to receive his check, which was customarily mailed to that office for distribution by McClendon.

The action is not based upon the theory that the employers were negligent in employing an irascible and unsuitable employee such as in legal contemplation might have charged them with knowledge that the alleged tort would be committed, to which counsel for the plaintiff gives some space in his brief. We think, however, that the theory that one may be an employee one minute and the very next minute become enraged, commit an assault and battery, and in that act be not an employee, is too fine-spun a distinction. Central of Georgia Ry. Co. v. Brown, 113 Ga. 414,416 (38 S.E. 989). The allegations of the instant petition do not show such a "stepping aside" from the employer's business as is contemplated by the cases, if indeed it shows any stepping aside at all.

The defendants' contention that McClendon's authority and duties did not include giving the address of the home offices is too debile to merit discussion. Upon whom did such a duty rest?

The petition sufficiently stated a cause of action to withstand the general demurrer, and the court erred in sustaining the demurrer and in dismissing the petition. See particularly, in this connection, Frazier v. Southern Ry. Co., 200 Ga. 590 (37 S.E.2d 774), Schwartz v. Nunnally Co., 60 Ga. App. 858 (5 S.E.2d, 91), and cit. The question of whether or not McClendon was acting within the scope of his employment and in the prosecution of the employers' business is one for the jury.

Judgment reversed. Gardner and Townsend, JJ., concur.