Opinion
30909.
DECIDED MAY 10, 1946.
Action for damages; from Fulton superior court — Judge Hendrix. April 16, 1945.
Thomas G. Lewis, Winfield P. Jones, for plaintiff.
Neely, Marshall Greene, for defendant.
In this case the Court of Appeals affirmed the judgment of the trial court in dismissing the petition on general demurrer. 73 Ga. App. 58 ( 35 S.E.2d 525).
On a writ of certiorari, the Supreme Court reversed the judgment of this court, and held that the petition stated a cause of action, and that, "whether or not Young, the servant of the defendant, at the time of the assault on the plaintiff, was acting in the scope of his employment and in the prosecution of the master's business, is a question for the jury's determination, under the specific averments of the petition." Frazier v. Southern Ry. Co., 200 Ga. 590 ( 37 S.E.2d 774).
The Supreme Court in that case also disapproved the decision in Central of Ga. Ry. Co. v. Stephens, 20 Ga. App. 546 ( 93 S.E. 175), cited in the decision of this court. In view of that ruling, the decision in the Stephens case, on a review thereof, is overruled. The previous judgment in this case is ordered vacated; and the judgment of the trial court dismissing the petition is
Reversed. MacIntyre and Gardner, JJ., concur.