Personal Finance Co. v. Whiting

Broyles, C. J. 1. “Every person shall be liable for torts committed by his . . servant, by his command or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary.” Civil Code (1910), § 4413. [155] Decided December 22, 1933. 2. “A corporation is responsible for the acts of its agents in the business of their employment just as an individual is liable; and whether the agent was acting within the scope of his employment, when he committed a tortious act, is a question of fact for the jury.” Century Co. v. Lewkowitz, 1 Ga. App. 636 (1). 3. “Where a servant does an act in the execution of a lawful authority given him by his master and for the purpose of performing what the master has directed, the master will be liable for an injury thereby inflicted on another, whether the wrong be occasioned by negligence or by a wanton and reckless purpose to accomplish the master’s business in an unlawful manner.” Southern Ry. Co. v. James, 118 Ga. 340. 4. Whether the servant, at the time of the commission of the tortious act, was acting within the scope of his employment is generally a question of fact for the jury. Winoker v. Warfield, 136 Ga. 742, 745; Seaboard Ry. v. Arrant, 17 Ga. App. 489 (2 a); Atlanta Hub. Co. v. Jones, 47 Ga. App. 778 (171 S. E. 470) ; Friedman v. Martin, 43 Ga. App. 677. 5. In the instant case it can not be held, as a matter of law, that the facts set forth in the amended petition disclosed that the employee of the defendant company, in committing the tortious act as alleged, was acting wholly without the scope of his employment. Therefore the court did not err in overruling the general demurrer to the petition. See, in this connection, Toole Co. v. Ellis, 5 Ga. App. 271 (1) ; Thompson v. Wright, 109 Ga. 466; Savannah Electric Co. v. Wheeler, 128 Ga. 550 (2) ; Fielder v. Davison, 139 Ga. 509, 511 (par. 3) ; Exposition Cotton Mills v. Sanders, 143 Ga. 593; Atlanta Hub. Co. v. Jones, supra. The cases of Southeastern Fair Association v. Wong Jung, 24 Ga. App. 707, Atlanta Coca-Cola Co. v. Brown, 46 Ga. App. 451; and the others cited in the brief of counsel for the plaintiff in error are distinguished by their particular facts from the instant case. Judgment affirmed. MacIntyre and Guerry, JJ., concur. Parle .& Strozier, for plaintiff in error. Edward P. Taylor, contra.