Opinion
42918.
ARGUED JULY 5, 1967.
DECIDED JULY 11, 1967.
Action for damages. Fulton Superior Court. Before Judge Dyer.
Garland Garland, Edward T. M. Garland, for appellant.
Nall, Miller, Cadenhead Dennis, Thomas S. Carlock, Dennis J. Webb, for appellees.
A petition alleging that the defendant servant committed upon the plaintiff a wilful assault and battery while the servant was engaged in the prosecution of the defendant employer's business was good as against a general demurrer.
ARGUED JULY 5, 1967 — DECIDED JULY 11, 1967.
Robert D. Jones brought suit against Dixie Ohio Express, Inc. and its truck driver, Coleman Alexander, alleging that he, as a truck driver for Philpot Contractors, had parked its pickup truck at a loading platform at the rear of a building and was loading materials on it to be transported to another location, Alexander drove a truck of Dixie Ohio Express alongside the pickup and parked it. Plaintiff, being out of the pickup and on the ground, was assaulted by Alexander and beaten with a club "in order to expedite and benefit the defendant, Dixie Ohio Express, and in furtherance of its business." It was alleged that Dixie Ohio Express is a competitor of Philpot Contractors, both of them being engaged in the hauling of merchandise for hire. Plaintiff alleges that the bruises inflicted on him by the club were accomplished by the assault of these defendants, acting in concert for the benefit of the business of the defendant, Dixie Ohio Express, and that "the defendants did jointly and severally commit said assault and battery upon the person of the plaintiff."
Defendants demurred generally and specially. Upon hearing, the general demurrer was sustained with 20 days allowed in which to amend. No amendment was tendered or filed and after expiration of the 20 days an order was entered dismissing the petition. From that order plaintiff appeals.
1. "A master is liable for the wilful torts of his servant, committed in the course of the servant's employment, just as though the master had himself committed them. This rule applies as well where the master is a corporation as where he is a private individual." Central of Ga. R. Co. v. Brown, 113 Ga. 414, 416, 417 ( 38 S.E. 989, 84 ASR 250). But "if a servant steps aside from his master's business, for however short a time, to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not liable." Savannah Electric Co. v. Hodges, 6 Ga. App. 470, 471 ( 65 S.E. 322).
A general averment that the servant was acting in the prosecution of his master's business when the tort was committed, or in the commission thereof, is sufficient as against a general demurrer to state a cause of action. Savannah Electric Co. v. McCants, 130 Ga. 741 (2) ( 61 S.E. 713); White v. American Security Co., 48 Ga. App. 370, 371 ( 172 S.E. 853); Jump v. Anderson, 58 Ga. App. 126, 127 ( 197 S.E. 644); Brown v. Union Bus Co., 61 Ga. App. 496 ( 6 S.E.2d 388); Gilbert v. Progressive Life Ins. Co., 79 Ga. App. 219 ( 53 S.E.2d 494).
The allegations of this petition, though skimpy, are sufficient in their present form to withstand a general demurrer. There are special demurrers, which, when ruled on, may place the matter in a different light. "A tort committed by a servant while engaged in the master's business is not necessarily a tort committed in the course of his employment and in the prosecution of the master's business." Ford v. Mitchell, 50 Ga. App. 617 ( 179 S.E. 215). "The test is not that the act of the servant was done during the existence of the employment — that is to say, during the time covered by the employment — but whether it was done in the prosecution of the master's business; whether the servant was at that time engaged in serving his master." Louisville N. R. Co. v. Hudson, 10 Ga. App. 169, 172 ( 73 S.E. 30). And see Prince v. Brickell, 87 Ga. App. 697, 700 ( 75 S.E.2d 288); Fielder v. Davidson, 139 Ga. 509, 511 (3) ( 77 S.E. 618); Planters Cotton-Oil Co. v. Baker, 181 Ga. 161 ( 181 S.E. 671).
There are no specific allegations as the petition now stands which plainly and distinctively negative as a fact the general charge that the acts complained of were committed in the prosecution of the master's business, as was true in Daniel v. Excelsior Auto Co., 31 Ga. App. 621, 624 (2) ( 121 S.E. 692). Whether that may appear when the special demurrers are ruled upon and amendments are made to the petition alleging the facts which demonstrate that the servant had stepped aside from the master's business to commit the assault, as was true in Savannah Electric Co. v. Hodges, 6 Ga. App. 470, supra, Daniel v. Excelsior Auto Co., 31 Ga. App. 621, supra, Atlanta Baseball Co. v. Lawrence, 38 Ga. App. 497 ( 144 S.E. 351), and Heath v. Atlanta Beer Distributing Co., 56 Ga. App. 494 ( 193 S.E. 73), must await another day.
Included in the petition are certain allegations of negligence, though a suit for an assault and battery is not a negligence action. Demurrers to these likewise have not been ruled upon.
Judgment reversed. Felton, C. J., and Hall, J., concur.