Greenfield v. Colonial Stores, Inc. , 110 Ga. App. 572 ( 1964 )

Bell, Presiding Judge.

The petition in this case clearly appears to be an attempt to allege a. cause of action under the theory stated in Lemaster v. Millers, 33 Ga. App. 451 (1) (126 SE 875), and in Southern Grocery Stores, Inc. v. Keys, 70 Ga. App. 473 (28 SE2d 581) to the effect that an invitee on the premises of the invitor for the purpose of transacting business has a cause of action when he is made the brunt of opprobrious, insulting and abusive words by a clerk employed to deal with the invitee and which tend to humiliate, mortify and wound the feelings of the invitee. The petition’s theory is made obvious by its emphasis in alleging that plaintiff had been a customer in defendant’s store and repeatedly referring to that relationship. The briefs of opposing counsel only stress the invitee feature, the words spoken by the defendant’s agents, and the place where the events occurred.

If the events supporting plaintiff’s intended theory had been the only substance alleged there would be no doubt that the judgment dismissing the petition should be affirmed, for the petition affirmatively shows that all of the incidents charged as actionable occurred after the invitee relationship had ceased.

Notwithstanding the plaintiff’s apparent mistake in the principal theory of his case, there are other allegations which are sufficient to keep him in court, for he has alleged a cause of action for assault and'battery. See the preceding factual summation for the allegations which obviously are sufficient to state a cause of action for assault and battery within the following rules: “. . . Where all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another, there is an assault.’’ Quaker City Life Ins. Co. v. Sutson, 102 Ga. App. 53, 56 (1) (115 SE2d 699). “Any act of physical violence (and the law will not draw a line between different degrees of violence), inflicted on the person of another, which is not necessary, is not privileged, and which constitutes a harmful or offensive contact, constitutes an assault and battery.” Brown v. State, 57 Ga. App. 864, 867 (197 SE 82).

In the case of Southern R. Co. v. Chambers, 126 Ga. 404, 409 (55 SE 37, 7 LEA (NS) 926), it is'stated that “. . . when one who is an agent of the corporation commits a tort at places other than the place of agency, the company is not liable for the tort, unless it appears that it authorized the act or ratified it after its commission.” This statement is in complete harmony with the provisions of Code § 105-108 which declare that “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 shall be by negligence or voluntary.”

“One way of alleging agency so as to bind the principal for the acts of the agent is to allege that the act was committed by the agent as agent for the principal’and within the scope of his employment.” Harris v. Barnes, 100 Ga. App. 412 (4) (111 SE2d 147); Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 (58 SE2d 559). Here, the petition’s general allegations of agency in the commission of the assault and battery are sufficient to charge liability against the principal for the tort.

The petition sets out a cause of action against the employer for the alleged assault and battery committed by its employees while acting within the scope of employment and in prosecution of the master’s' business.

“A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance. The bad part in pleading does not make the whole bad; the good part makes the whole good enough to withstand a general demurrer.” Bailey v. Bell, 208 Ga. 715, 717 (69 SE2d 272); Korn v. Tamiami Trail Tours, Inc., 108 Ga. App. 510, 518 (133 SE2d 616).

Code § 81-1303 provides: “No amendment adding a new and distinct cause of action . . . shall be allowed unless expressly provided for by law.” An amendment to a petition may contain additional matter descriptive of the same wrong pleaded in the original petition, but it must not plead any other or different wrong. Simmons v. Beatty, 57 Ga. App. 350 (195 SE 289). See Ellison v. Ga. R. Co., 87 Ga. 691 (13 SE 809); City of Columbus v. Anglin, 120 Ga. 785 (48 SE 318). Although the facts alleged in the amendment to the petition could not have occurred were it not for the wrong alleged in the original petition, the allegations asserted in the amendment comprise an altogether different transaction and are not germane to the issue raised in the original petition.

The trial court on objection properly entered judgment striking the amendment.

The judgment sinking the amendment is affirmed. The judgment dismissing the petition is reversed.

Eberhardt, J., concurs. Jordan, J., concurs specially.