Huff v. National Accident & Health Insurance , 58 Ga. App. 355 ( 1938 )

Stephens, P. J.

1. Where an agent, while acting within, the scope of his employment and in the prosecution of the business for which he is employed in behalf of the principal, commits a tortious act upon another, the act of the agent is the act of,the principal, and the principal is responsible therefor.

2. Where, in a petition to recover damages alleged to have been sustained by the plaintiff as the result of a tortious act of the .defendant by and through the defendant’s agent, it is alleged that a named person who “was agent and servant of . this defendant, working and acting for” the defendant “at -the time and within the scope of his employment,” came to the plaintiff’s home where the plaintiff was sick, having with him money with which to pay the plaintiff a weekly benefit which was due to the plaintiff under a policy which the plaintiff had with the defendant insurance company, and, instead of paying the plaintiff the benefit, demanded that the plaintiff sign a paper releasing the defendant from benefits, and without any justification began to curse, abuse, and excoriate the plaintiff for refusing to sign the paper, left the house and returned with policemen and caused them to arrest the plaintiff and confine him in jail under a false and fraudulent accusation against the plaintiff of cursing the agent and running the agent from the plaintiff’s home; that the agent, while acting for the defendant and within the scope of his employment, prosecuted the plaintiff in the recorder’s court and asked and urged the recorder to find the plaintiff guilty and to punish him by sending him to the city chain-gang; that the recorder after heaping the case found the plaintiff not guilty; that this was a final termination of the prosecution in favor of the plaintiff; that the “object of said prosecution was to browbeat, frighten, and intimidate your petitioner from asking for and demanding said $10 weekly sick benefit together with future sums in like amounts,” and for the sole purpose of wantonly and wilfully beating the plaintiff out of his sick benefits justly due and becoming due; and that by reason of the alleged acts the prosecution was malicious and Avithout probable cause, there is set out a cause of action in favor of the plaintiff against the defendant for a malicious prosecution, Avithout probable cause, of the plaintiff by the defendant, and for an illegal arrest and imprisonment of the plaintiff, done wilfully and maliciously and without justification, by and through the agent of the defendant, while acting within the scope of his authority in the prosecution of the defendant’s business.

3. The petition, although certain paragraphs and allegations thereof had been stricken on demurrer, and amendments subsequently filed and 'allowed may not have met the objection urged by the special demurrer, nevertheless set out a cause of action, and was good against general demurrer. The court erred in sustaining the general demurrer to the petition.

Judgment reversed.

Sutton, J., concurs. Feltonj J., dissents.