Opinion
33750.
DECIDED DECEMBER 4, 1951.
Action for damages; from Richmond Superior Court — Judge G. C. Anderson. June 21, 1951.
George B. Rushing, for plaintiff.
George Fryhofer, Fulcher Fulcher, for defendant.
1. Where defendant opened a default by paying costs and filing an answer within the time prescribed by law, it was not necessary to allege in such answer that such costs had been paid, and the court properly overruled the demurrer pointing out the failure to so allege.
2. The petition, in failing to allege that the acts of defendant's servants were committed within their scope of employment, did not allege a cause of action against defendant master, and the court did not err in sustaining the general demurrer to the petition and in dismissing the action.
DECIDED DECEMBER 4, 1951.
Samuel F. Laughlin Jr. sued Bon Air Hotel Incorporated for injuries caused by the acts of alleged agents of defendant. The petition alleged in part: "3. That the said named defendant had in his [its] employ on the aforesaid December 16th, 1950, one D. S. Smith, as night watchman, and one Cleo Morgan, as house detective, both of whom were on duty in The Bon-Air as authorized agents of the named defendant, on or about 11:45 o'clock in the evening of the said December 16th, 1950. 4. That your petitioner registered as a guest of the Bon-Air in the afternoon of December 16th, 1950, and obtained a room in the said hotel which he occupied as guest until the following day, at which time he checked out after having paid the bill rendered for his lodging. 5. That your petitioner, after having registered and obtained a room in said hotel, went in the company of friends to the coffee shop of said hotel to patronize same; and while there, at or about 11:45 o'clock in the evening of the said December 16th, 1950, your petitioner was approached and accosted by the said D. S. Smith, agent of the defendant, who falsely and maliciously accused him of having made improper remarks to a certain woman employee of the coffee shop and without further explanation ordered him to leave the coffee shop at once. The said D. S. Smith, in so ordering your petitioner to leave the coffee shop, was loud and rough, and threatened and abused him by word and gesture in full view of petitioner's friends, other guests, and customers present at the time, — much to petitioner's embarrassment. Even so, petitioner wished to avoid any further unpleasantness and left, — though not without resentment at this unwarranted treatment. Apparently, the said D. S. Smith was thereby infuriated for he followed petitioner out of the coffee shop into the hallway of the said hotel, and thereupon attacked him and assaulted him bodily, being assisted by one Cleo Morgan, another agent of the named defendant, who appeared on the scene. Then, these two men proceeded to beat your petitioner into unconsciousness with blackjacks. 6. That as a result of this aggravated and unprovoked assault and in the course of same, your petitioner received lacerations and bruises on the head and suffered acute physical pain. He likewise suffered, continues to suffer, and will continue to suffer for an indefinite period of time mental pain and anguish, humiliation, embarrassment, and loss of peace, resulting from the whole transaction including the false and malicious accusation of defendant's agent, the abusive treatment in the coffee shop, and the subsequent assault and battery in the hallway of the said hotel, and it is for this pain and suffering and all other pain, suffering, mental and physical, past, present, and future, for which this suit is brought. 7. That all of the aforesaid injuries sustained by your petitioner were directly and proximately caused by the wilful and wanton misconduct of defendant's agents, who at the time were acting for and in behalf of their principal, the named defendant, and further by the failure of the defendant to exercise that degree of care required by law of an innkeeper for the safety of his guest." The petition was filed March 21, 1951. On May 4, 1951, defendant filed its demurrer and answer. Ground one of the demurrer alleged that the petition failed to set forth any cause of action, and ground two alleged that the petition affirmatively showed that the damage to plaintiff, if any, resulted from a personal altercation, not in the course of but outside and beyond the scope of employment of defendant's alleged agents. Plaintiff demurred to defendant's demurrer and answer on the grounds: "1. Because neither the said answer nor the said demurrer filed by the defendant herein constitutes a legal defense to the action . . . 2. Because the said cause is now in default and was in default at the time the said answer and demurrer of the defendant was filed, as is shown by the record herein, and further, because it does not appear from the face of defendant's pleadings filed herein, or any part thereof, that the said default was opened legally at the time thereof, or prior thereto, in the manner prescribed by law." The court overruled plaintiff's demurrer and he excepted pendente lite. Defendant's demurrer to the petition was sustained and plaintiff excepts to this ruling and on his exception pendente lite.
1. Plaintiff sought by demurrer to show that defendant had not "opened legally", and "in the manner prescribed by law", the default. He contends that defendant failed to show this in that he did not plead that costs had been paid. Thompson v. Nichols, 208 Ga. 147 ( 65 S.E.2d 603), held that such question could not be raised by general demurrer and that the proper manner in which to raise the question is by a motion to strike the plea. While in the Thompson case the plaintiff's demurrer was general in nature and did not specifically mention the default as did the demurrer in the instant case, nevertheless the law announced there is applicable to the instant case. In National Union Fire Ins. Co. v. Ozburn, 57 Ga. App. 90 (2) ( 194 S.E. 756), the action was a renewal of a previous suit voluntarily dismissed and the court held that, "it is not a good ground of demurrer that "It fails to appear that plaintiff has paid the accrued costs or has filed an affidavit in forma pauperis, as required by law'." It therefore follows that if pleadings failing to plead that the required costs have been paid are not subject to a demurrer pointing out such, pleading the payment of the costs is not necessary.
2. The words "false", "Falsely", "malicious" and "maliciously" have been given many varied definitions by courts throughout the country, and it seems that such definitions depend upon the manner in which the words are used. See. Words Phrases. Some examples of the connections put on these words are: "The word `false' has two distinct and well-recognized meanings. It signifies (1) intentionally or knowingly or negligently untrue, and (2) untrue by mistake, accident or honestly after the exercise of reasonable care." Metropolitan Life Ins. Co. v. Adams, D.C. Mun. App. (37 A.2d, 345). "As to the essential elements of `knowingly and falsely swearing', falsely swearing is knowingly affirming without probable cause." Hicks v. State, 67 Ga. App. 475 (8) ( 21 S.E.2d 113). "Malicious' or `maliciously' means any unauthorized interference, or any interference without legal justification or excuse. Personal ill will or animosity is not essential." Luke v. DuPree, 158 Ga. 590, 596 ( 124 S.E. 13). "By `malice' or `malicious" is meant a wish or desire to vex, annoy, or harass another." Kerley v. Germscheid, 20 S.D. 363 ( 106 N.W. 136). "`Malicious' imports nothing more than the wicked and perverse disposition with which the party commits the act." Commonwealth v. York, 50 Mass. 93. "`Maliciousness' does not necessarily means actual malice or ill-will, but the intentional doing of a wrongful act without legal or social justification." Dorrington v. Manning, 135 Pa. Sup. 194 (4 A.2d, 886). "The words `cruelly, unreasonably, and maliciously' are relative terms." Stone v. State, 1 Ga. App. 292 ( 57 S.E. 992). "The word `false' has two distinct and well-recognized meanings: (1) intentionally or knowingly or negligently untrue; (2) untrue by mistake or accident, or honestly after the exercise of reasonable care. In jurisprudence, `false' and `falsely' are oftenest used to characterize a wrongful or criminal act, such as involves an error or untruth, intentionally or knowingly put forward." Black's Law Dictionary (De Luxe ed.) p. 748. "Malicious. Evincing malice; done with malice and an evil design; wilful." Ibid., p. 1148. There is an almost inexhaustible source of definitions of these words, each definition seeming to depend upon the circumstance of its use. In the present case, the interpretation of the allegation: "your petitioner was approached and accosted by the said D. S. Smith, agent of the named defendant, who falsely and maliciously accused him of having made improper remarks to a certain woman employee" (emphasis supplied), will depend upon what is meant by "falsely and maliciously" under the circumstances of the case. Construing the petition most strongly against the plaintiff upon general demurrer, it alleges that Smith with ill will made the accusation from which the ensuing events stemmed knowing that the accusation was in fact not true and unfounded. In view of this construction of the petition, Smith was not acting within the scope of his employment in making the accusation and in committing the acts of violence that grew out of such accusation. The petition alleges the converse of Smith's carrying out, in good faith, his duties as defendant's night watchman to prevent reproachable conduct on the premises of defendant. This case is not such a case as criticized in Central of Ga. Ry. Co. v. Brown, 113 Ga. 414, 416 ( 38 S.E. 989), cited in Frazier v. Southern Ry. Co., 200 Ga. 590, 594 ( 37 S.E.2d, 774), where the court said: "some of the courts seem at one time to have been inclined to hold that a master could not be held liable for the wilful torts of his servant, because, it is said, if the servant through anger or malice committed an assault upon a person, he ceased for the time being to occupy the position of servant, and acted independently; that, inasmuch as he was not authorized to commit an assault, he did not represent the master in the act but acted as an individual, the master therefore being not liable either in case or in trespass. This argument has long since been exploded. The theory that one may be a servant one minute, and, the very next minute, get angry, commit an assault, and in that act be not a servant, was too refined a distinction." In the instant case, the petition, under the construction made thereof by this court, did not allege that, at any time between the time plaintiff was approached and accosted by Smith and the time the assault took place, Smith was acting in good faith as agent of defendant. Nor is this a case where defendant is alleged to be guilty of a primary act of negligence in the selection of an unfit servant. The defendant is sought to be made liable only on the theory of respondeat superior. While the petition contains a general allegation that the acts complained of were done within the scope of Smith's employment, the specific allegations as to the acts of Smith negative such general allegation. As to Cleo Morgan, it is only alleged that he was a servant of defendant and that he appeared on the scene and assisted Smith in the assault, and that plaintiff's injuries were directly and proximately caused by the wilful and wanton misconduct of defendant's agents, who, at the time, were acting for and in behalf of their principal. In view of what has been held, the petition, construed against plaintiff, merely alleges that Morgan joined in a personal altercation between plaintiff and Smith, and such allegations are insufficient as against a general demurrer to show that Morgan's participation in the assault was done in the scope of his employment. See: Lewis v. Amorous, 3 Ga. App. 50 ( 59 S.E. 338), and Bates v. Southern Ry. Co., 52 Ga. App. 576 ( 183 S.E. 819).
The court did not err in overruling plaintiff's demurrer to defendant's demurrer and answer, and did not err in sustaining defendant's general demurrer to the petition and in dismissing the action.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.