Opinion
36901.
DECIDED OCTOBER 30, 1957.
Tort; assault and battery, demurrer. Before Judge Kennedy. Richmond Superior Court. July 18, 1957.
Jay M. Sawilowsky, for plaintiff in error.
John F. Hardin, contra.
1. Since at the time of the assault the plaintiff was no longer an employee of the defendants Paulk and Montgomery, he was not a fellow servant of the defendant Nasworthy and is not, therefore, barred by the fellow-servant rule.
2. Under the allegations of the petition, it would be a jury question as to whether the defendant Nasworthy committed the assault on the plaintiff while in the scope of his employment.
DECIDED OCTOBER 30, 1957.
Theodore G. Hickman sued R. C. Paulk, A. J. Montgomery, Jr., and W. J. Nasworthy for damages. The petition alleged in part the following: "4. That on the 4th day of May, 1956, the defendants R. C. Paulk and A. J. Montgomery, Jr., as partners, were engaged in the retail grocery business and doing business under the name of `Paulk's Food Stores,' a partnership firm composed of R. C. Paulk and A. J. Montgomery, Jr., with a branch of said firm being located at 920 Baker Avenue in the City of Augusta, Georgia, and said branch store being known as `Paulk's Super Market.' 5. That on the 4th day of May, 1956, the said defendants R. C. Paulk and A. J. Montgomery, Jr., had in their employ the defendant W. J. Nasworthy as the manager of the grocery department of their branch store located at 920 Baker Avenue, Augusta, Georgia, and known as `Paulk's Super Market.' 6. That on May 3, 1956, your petitioner applied to the defendant A. J. Montgomery, Jr., for a job as a meat cutter and was told to report for work at seven thirty o'clock the next morning — which was the 4th of May, 1956 — at the branch store located at 920 Baker Avenue, Augusta, Georgia, which is known as `Paulk's Super Market.' 7. That on the 4th day of May, 1956, your petitioner arrived at the branch store known as `Paulk's Super Market,' located at 920 Baker Avenue, Augusta, Georgia, at seven o'clock in the morning. Your petitioner was admitted to the store by defendant W. J. Nasworthy, there being no one else in the store and defendant W. J. Nasworthy being right then in charge of said store. After admitting your petitioner to the store, the defendant W. J. Nasworthy ordered your petitioner to go back to the meat department of said store and wait there for the manager of the meat department. 8. That your petitioner went back to the meat department of said store, but instead of waiting as ordered by defendant W. J. Nasworthy, your petitioner went right to work getting things ready for the day's activities, as your petitioner was experienced in this work. 9. That upon hearing your petitioner's movements in working in said meat department, the defendant W. J. Nasworthy came back to said meat department and told your petitioner in a loud, rude, angry, insolent and overbearing tone of voice, `I thought I told you to wait for the meat manager!' 10. That your petitioner replied that he had no need to wait as he was experienced in this work and knew what to do, and that he, the petitioner, quit the job and was going to leave the store immediately. 11. That immediately after your petitioner made his reply, the defendant W. J. Nasworthy then and there attacked your petitioner with his first and beat and struck your petitioner with great force and violence several times in the face and jaw; although your petitioner had done nothing, either by word or act, which reasonably provoked or justified such attack, and although defendant W. J. Nasworthy was considerably taller, heavier and stronger than your petitioner; said attack occurring approximately ten minutes after seven of the same morning. 12. That the act of attacking, beating and striking your petitioner as aforesaid by the defendant W. J. Nasworthy was done and committed in the prosecution of the business of the defendants R. C. Paulk and A. J. Montgomery, Jr. and was within the scope of defendant W. J. Nasworthy's employment with defendants R. C. Paulk and A. J. Montgomery, Jr." The plaintiff further alleged his injuries and damages in enumerated particulars.
The court sustained the general demurrer of the defendants R. C. Paulk and A. J. Montgomery, Jr., and dismissed the action as to them and the plaintiff excepts.
1. The defendants in error contend that the petition shows that the plaintiff and the defendant Nasworthy were fellow servants at the time of the assault and that since the plaintiff fails to allege in his petition any negligence on their part in the selection or retention by them of the servant, Nasworthy, the petition failed to state a cause of action as to them. The relationship between the parties must be determined on common-law principles and we think that the determination made in the case of Smith v. Seaboard Air-Line Ry., 18 Ga. App. 399 ( 89 S.E. 490) determines the question involved here. In that case a railroad conductor discharged a brakeman who, in the opinion of the conductor, had neglected his employment duties. Upon discharging the brakeman, the conductor instructed him to go to the "cab" and get his lantern and leave. Just as the brakeman started in the direction of the cab to get his property therefrom, the conductor assaulted the brakeman. It was held that at the time of the assault the brakeman was no longer an employee of the railroad company. In the instant case, when the plaintiff quit and started to leave the premises of his employers, for the purposes of a common-law action in tort he ceased to be an employee of the defendants Paulk and Montgomery and therefore ceased to be a fellow servant of the defendant Nasworthy. The Court of Appeals in Ledman v. Calvert Iron Works, 92 Ga. App. 733, 737 ( 89 S.E.2d 832) overruled the Smith case, supra, only in so far as that case held that at the time of the assault the conductor was not acting within the scope of his employment. All other rulings in the Smith case, supra, stand unreversed.
2. Since the assault in the instant case grew solely out of a dispute between the plaintiff and the defendant Nasworthy pertaining to employment duties, etc., it would be a jury question as to whether the assault was so closely connected to the employment as to bring it within the scope of Nasworthy's employment. See Frazier v. Southern Ry. Co., 200 Ga. 590 ( 37 S.E.2d 774); Ledman v. Calvert Iron Works, 92 Ga. App. 733, supra.
The court erred in sustaining the general demurrer and in dismissing the action as to the defendants Paulk and Montgomery.
Judgment reversed. Quillian and Nichols, JJ., concur.