Crawford v. Exposition Cotton Mills , 63 Ga. App. 458 ( 1940 )

Under the allegations of the petition as amended, the plaintiff at the time of his injury was an invitee of the defendant cotton mill; and it was a question for the jury whether or not the act of the defendant's store manager, in striking and injuring the plaintiff, was so closely connected with the employer's business as to render the defendant liable for the wilful assault of its servant. Accordingly, the court erred in sustaining the defendant's general demurrer.

DECIDED OCTOBER 17, 1940. REHEARING DENIED NOVEMBER 1, 1940. Luther Crawford brought suit against Exposition Cotton Mills, a corporation, and S. A. Ferrell, to recover damages because of injuries sustained by him on account of an alleged unauthorized assault and battery committed upon him by Ferrell, an employee of the corporation. The petition as amended alleged, that the corporation was engaged in the business of manufacturing cotton into different fabrics, and in connection with its business operated a company store on its premises, selling dry goods and food stuffs to its employees and the public generally, of which store the defendant Ferrell was its general manager, assisted by a staff of about twelve clerks; that about twelve o'clock on May 6, 1939, the plaintiff arrived at the front of said store, intending to enter and purchase groceries; that just at the instant that he caught hold of the front door of the store, Ferrell, acting for himself and on behalf of his employer, closed the door while plaintiff was standing on the premises thereof; that while Ferrell was more thoroughly securing, closing, and fastening the door the plaintiff uttered a harmless exclamation, expressing his personal regret and discomfort at having been shut out of the store at that time; that his expression was not directed towards any one, and it was peaceable and a spontaneous utterance of his misfortune, but that at the very instant of its utterance Ferrell, acting on his own behalf and while in line of duty in behalf of the employer, seized a certain piece of iron four and a half feet long, two inches wide, and more than one fourth of an inch thick, commonly used as a bar for said door, and did furiously, suddenly, with malice, and without any provocation whatsoever, open the door and strike plaintiff on the top of his cranium, injuring him in described respects; that though plaintiff begged and pleaded with him not to strike him any more, as the blood gushed from the wound he had received, Ferrell cursed him, using violent "epitaphs" (epithets?), and stated to plaintiff, who was injured, bleeding, and trembling, that he would kill him; that at said time and place there were a number of employees in the front of the store and grouped around the area thereof, and members of the public generally crowding around the front of the store; that, on information and belief, had it not been for their presence Ferrell would have then and there taken the life of plaintiff; that the defendant corporation, through its agents and servants, was negligent (a) in employing Ferrell, who is a highly fractious, nervous, and dictatorial type of man, possessing an unusually and abnormally high temper, and at the time he was employed the defendant corporation knew or could have known that he was as he is alleged to be, and would likely strike any employee or member of the public on slight provocation or no provocation; (b) that without the least provocation, while plaintiff was standing harmlessly at said door as an invitee, and at an instant just after he had involuntarily uttered a peaceable and harmless exclamation of his dismay and regret at having failed to arrive at the store at least one or two seconds before Ferrell, the manager of the defendant corporation's store, slammed the door, Ferrell did, without provocation, wilfully and maliciously strike plaintiff, who was standing peaceably as an invitee on the premises of the said corporation, merely trying to get into the store to trade and purchase groceries from its store; that plaintiff could not possibly have discovered the incompetency and fractious and dangerous character of Ferrell by the exercise of ordinary care, because he did not have equal opportunity of learning of his traits and disposition, the officers, agents, and servants of the defendant corporation having possessed such information for more than ten years, because plaintiff was in said store only on an average of once a week and on these occasions did not talk with Ferrell but only with one of the clerks working under him, and it was only for a few minutes at the most, and the defendant corporation, through its officers, agents, and servants, who constantly, over a period of ten years or more, had known, talked with, dealt with, and knew Ferrell and his most minute traits and dangerous impulses of temper and fractiousness, could have discovered such incompetency and dangerous character of Ferrell if it had, through its officers, agents, and servants, exercised ordinary care, but which it did not do. It was alleged that Ferrell was negligent at the same time and place, in that he did, without any provocation whatsoever on the part of plaintiff, and while he was peaceably standing on the front of said store as an invitee of defendant corporation, and of Ferrell, as manager of the store, wilfully and maliciously strike plaintiff as hereinbefore alleged. The petition detailed the injuries received, alleged treatment by a doctor and the necessity of further treatment for an indeterminate period, and prayed for $5000 damages for pain and suffering and $10,000 as punitive damages.

Each of the defendants filed general and special demurrers. The exception is to the judgment sustaining the general demurrer of the Exposition Cotton Mills.

1. In this court the plaintiff suggested in writing the death of the defendant S. A. Ferrell and made a motion that Janie King Ferrell, executrix of his last will and testament, be substituted as a party defendant in his stead in the bill of exceptions. The motion is granted.

2. The majority of the court, Stephens, P. J., and Felton, J., are of the following opinion: The cotton-mill company operated a store for the sale of merchandise and groceries to the cotton-mill employees. The plaintiff was upon the premises of the defendant company for the purpose of entering the store to transact business with the company. He approached the store while the door was open, and while he apparently was being invited to enter the store for the purpose stated. Therefore he can not be said to be a trespasser, or to be one who was not an invitee upon the premises of the defendant. The plaintiff was an invitee, and was entitled to protection as such from the defendant and its employees in charge of the store. Just as the plaintiff approached the store, and before he could enter the door of the store as a customer of the defendant, the defendant's authorized agent, who was the manager of the defendant's store, and who was keeping the door, shut it in the plaintiff's face and prevented an entry therein by the plaintiff. Upon the plaintiff's expressing a personal regret upon reaching the door when the door was being closed in his face, by the "utterance of some harmless exclamation," the defendant's agent in charge of the store and keeping the door assaulted the plaintiff. The plaintiff's exclamation was clearly connected with and grew out of the act of the defendant's agent in closing the door. If such agent, in resentment of the plaintiff's exclamation or by reason thereof, hit the plaintiff as alleged, it was a question for the jury whether the assault "was so closely connected with the authorized transaction of the company's business as to render the company liable for the wilful acts of its servants." See Schwartz v.Nunnally Co., 60 Ga. App. 858 (5 S.E.2d 91). Moreover, the plaintiff's case is strengthened by the fact that it appears from the allegations in the petition that the defendant's agent, who was manager of the store and keeping the door thereof at the time, was, with the knowledge of the defendant and without the knowledge of the plaintiff, possessed of "an unusually and abnormally high temper . . and would likely strike any employee or member of the public on slight provocation or no provocation at all." It was also alleged that the plaintiff did not know of such incompetency and dangerous character of the defendant's agent, and could not have discovered such by the exercise of ordinary care, because the plaintiff did not have an equal opportunity with the defendant of knowing such fact. The petition as amended set forth a cause of action, and the judge erred in sustaining the general demurrer of the cotton mill.

Judgment reversed. Stephens, P. J., and Felton, J.,concur. Sutton, J., dissents from the ruling in thesecond division of the opinion, and from the judgment ofreversal.