Calvert v. Atlanta Hub Co.

Jenkins, P. J. (After stating the foregoing facts.) The principles of law set forth in the first and second divisions of the syllabus require no elaboration. While it is true that where one is employed as an independent [298] contractor to render services on behalf of another, the employer becomes liable for the tort of the independent contractor in carrying out the purposes of the contract if he ratifies the unauthorized wrong (Civil Code of 1910, §§ 4415 (6), 4416), still the ratification must relate to the wrong itself, and not merely to the authority of the independent contractor to act as such for the employer. Accordingly, the mere acceptance by the employer of the benefits naturally flowing from the proper performance by the independent contractor of his contract, and the retention of such benefits after knowledge that such contractor, in the performance of the contract, committed an independent tort, will not amount to ratification by the employer of the tort itself. Where, as in the instant case, the object of the contract was the collection of a debt owing to the employer, the acceptance by the employer from the independent contractor of the amount collected, which was no greater than the amount admittedly due him, and the retention of that amount after knowledge of the unauthorized tort committed by the contractor in making the collection, would not amount to a ratification of such unauthorized wrong. If, after ascertaining the commission of the tort of the independent contractor, the defendant was entitled to retain the proceeds of the collection on the theory that the amount collected represented an amount admittedly due the defendant by the plaintiff, and if the defendant could not be required to pay back the amount thus re-received, its. right to retain it establishes the fact that the defendant received and held the funds solely by virtue of its admitted claim of indebtedness, and not because of the tort committed, and that such retention could not, therefore, amount to a ratification of the tort, but amounted only to an affirmation of the contractor’s authority, as such independent contractor, to receive such sum for his employer. The purport of the testimony of the plaintiff’s witness, Rose, is to the effect that Carson was not asked, and that nothing was then said by him one way or the other, as-to whether the relationship then existing between the defendant and the collector was that of master and servant, or employer and independent contractor; that is, while it appears that some sort of relationship was understood to exist between the defendant and the collector, its nature and character, was not raised or brought into question. [299] While it was not contended by counsel for the plaintiff in error that a failure on the part of the manager to voluntarily inform the witness Eose of the exact nature and character of the collector’s employment amounted to such an admission by silence as would tend to discredit Carson’s undisputed testimony on the trial that the collector was in fact an independent contractor, we think it proper to say that, accepting Eose’s testimony as true, the failure of the manager to raise and discuss with this witness the nature and legal effect of the contract of employment, when no such matter or question had been suggested or brought to his attention, could not be taken as discrediting his undisputed testimony on the trial. Eose’s testimony shows that he “went down to- the Hub Style Store on May 19, 1925, and got a receipt.” The purport of this testimony is that he went down to interview Carson not for the purpose of entering a claim for damages against the Hub Company, but in order to ascertain if Kelley had turned over the money, and, if so, to obtain a receipt from the Hub Company in lieu of the one signed by Kelley. His'testimony in no wise indicates that the responsibility of the Hub Company for the conduct of Kelley was in any way broached, and there is nothing to suggest that the defendant’s manager could then have supposed that the plaintiff intended to hold the defendant company' liable for Kelley’s acts and conduct. This being true, there w;as no duty upon the defendant to presuppose a claim for liability in no wise intimated, and to disclaim responsibility for the acts of its independent contractor. Judgment affirmed. Bell, J., concurs. Stephens, J., dissents.