Opinion
32019.
DECIDED MAY 22, 1948. REHEARING DENIED JUNE 5, 1948.
Action for damages; from Americus City Court — Judge James W. Smith. February 28, 1948.
Fort Fort, R. L. Maynard, for plaintiff.
Dykes Dykes, Smith Undercofler, for defendants.
The petition alleged a cause of action against the Americus Hardware Company and the court erred in sustaining its general demurrer and in dismissing the action as to it.
DECIDED MAY 22, 1948. REHEARING DENIED JUNE 5, 1948.
George A. Clark Sr., as next friend of his son, George A. Clark Jr., brought an action against the Americus Hardware Company, a corporation, and H. George Teaford to recover for personal injuries resulting from an assault and battery committed upon young Clark by Teaford, as manager of the Americus Hardware Company. Briefly the allegations of the petition may be summarized as follows: On September 11, 1947, young Clark went into the Americus Hardware Company during business hours to purchase certain iron pipe for his father; he called for the manager of the store, and Teaford as manager of the store told him that they did not have any pipe to sell except with pumps and that if he purchased a pump he could only let him have the usual pipe allotment for pumps; Clark Jr. thanked Teaford and having completed his mission there left the store; as young Clark left the store, one of the clerks in the store called Teaford's attention to the fact that he was the son of Clark Sr., whereupon Teaford rushed to the front door, whistled to him and motioned to young Clark to come back; young Clark in response to Teaford's invitation returned from across the street, where he was about to enter his truck, to the front of the store; whereupon Teaford asked him, "Aren't you a son of George Clark of Smithville?" Teaford then said, "I would not sell that ____ ____ ____ ____ ____ (profaning Clark Sr.) a thing." In reply Clark Jr. said, "That is my daddy you are talking about and if that is the way you feel about it you can kiss my ____." Thereupon Teaford struck young Clark in the mouth causing certain enumerated injuries. Teaford's animosity for Clark Sr., grew out of the fact that they were competitors and Clark Sr., had sold many goods to the people of Americus and Sumter County in competition with the Americus Hardware Company of which Teaford was the manager and owner, and Teaford vented his animosity upon young Clark. The Americus Hardware Company and Teaford were jointly and severally liable to Clark Jr., for the injuries sustained. The Americus Hardware Company demurred to the petition and the court sustained its demurrer and dismissed the action as to it. The plaintiff excepted to this ruling of the court.
The Americus Hardware Company contends that the allegations of the petition show as a matter of law that the alleged misconduct of its employee was purely personal and occurred when the employee had stepped aside from his employment, and that it was not within the scope of the employment. We can not agree with this contention. Every case stands on its own facts, and we think the case is controlled by the cases of Frazier v. Southern Ry. Co., 200 Ga. 590 ( 37 S.E.2d 774), and Schwartz v. Nunnally Co., 60 Ga. App. 858 ( 5 S.E.2d 91), and cases cited therein. That George Teaford was acting within the scope of his employment in refusing to sell George A. Clark Jr., the merchandise he was seeking to buy is indisputable. When Teaford called young Clark back from across the street to tell him that he would not sell anything to his father it would be a jury question whether he was acting within the scope of his employment. A jury would be authorized to find that it was as much the business of the company not to sell merchandise to those with whom it did not wish to deal as it was to sell to desirable customers. The fact that the alleged misconduct occurred on the sidewalk after Clark had left the store is immaterial. The result is the same as if Teaford had followed Clark out of the store onto the sidewalk. Clark returned to Teaford at Teaford's invitation on a subject relating to company business and policy regardless of the personal aspect of Teaford's personal malicious satisfaction in the delivery of the message, if there was any. The allegation that Clark had completed his mission in the store is not conclusive and does not show of itself that the misconduct was wholly disconnected from the company's business. Although he had completed the mission on which he visited the store, Teaford resumed the business in a different aspect when he invited young Clark back to the front of the store and related to him as agent for his father that he would not sell his father anything, etc. The allegations do not show as a matter of law that the assault arose out of business which Teaford was not authorized to transact or that it was so remote from the business which he was authorized to transact as to relieve the company of liability. Schwartz v. Nunnally Co., supra. The petition set out a cause of action against the Americus Hardware Company and the court erred in sustaining the general demurrer and in dismissing the action as to it.
Judgment reversed. Sutton, C. J., and Parker, J., concur.