Lewis v. Miller Peanut Company , 77 Ga. App. 380 ( 1948 )

1. Under the facts alleged, while the employee of the defendant was traveling back and forth between Albany and Leary, he was acting within the time covered by his employment and for which he was paid, and under his contract of employment it was his "privilege and duty" to make these trips, and he was engaged in serving his master in the scope of his employment which was general in its nature.

2. The objections to the petition raised by special demurrer were met by amendment.

3. The petition as amended states a cause of action, and the court erred in sustaining the demurrers and in dismissing the petition.

DECIDED JULY 8, 1948. Max R. Lewis filed this action against Miller Peanut Company in the City Court of Albany, and seeks to recover for the damages to his automobile as a result of a collision with another automobile, allegedly operated by Lovie A. Hufstettler while in the scope of his employment with Miller Peanut Company. Hufstettler was not made a party to the action.

The facts on which the allegations of negligence are based, and for which damages in the amount of $550 are sought, are alleged in the petition as follows: "(3) On the morning of December 23, 1947, about 8:30 o'clock, your petitioner was driving his automobile east along the paved public highway in said county known as the Albany-Leary public road, and when he reached the village located on said public road known as Pretoria, where another public road crosses said paved highway, he turned north at said crossing and after his automobile had crossed over to the north side of said highway, and all of his said automobile, except the rear end of same, had entirely crossed said pavement, his said automobile was struck on the right rear end of same by another automobile being driven at the time by one Lovie A. Hufstettler, an employee of the defendant, who was at the time traveling west on said paved highway and who was acting within the scope of his said employment and in the furtherance of his said master's business. (4) The defendant operates a place of business located about 30 miles west of Albany, Georgia, and said employee of the defendant lives in Albany, Georgia, where he spends the night and whose trade and contract with the defendant includes the privilege and duty of going to and from Leary, Georgia, to carry on the business of his said employer, the contract of employment providing for said employee to go to Leary, Georgia, each morning and return to his home in Albany, Georgia, by automobile in the afternoon or evening. (5) The said employee, on the occasion aforesaid was driving the said automobile at a high and rapid rate of speed of about 50 miles per hour, and disregarding the rights of other people who might be crossing the said highway or turning therefrom, and gave no warning whatever of his approach to said road crossing, and failed to slow the speed thereof at said crossing, all of the same done when the vision of people on said paved highway was somewhat obscured by a heavy fog at the time. (6) Your petitioner had slowed the speed of his automobile, a 1936 Ford 4-door car, and as he approached said crossing and turned to the left northward on said intersecting public road he was driving at a speed of not more than 10 or 15 miles per hour, and had ample time to completely cross said paved highway and leave the same, if the said defendants' employee had performed his duty and not been negligent on said occasion. (7) The defendant's said employee, however, totally disregarded your petitioner's presence on said paved highway, and without any warning of any kind suddenly, and with great speed, as aforesaid, and without attempting to evade striking your petitioner's automobile, drove said automobile, a 1947 Ford Tudor car, into and against the right rear end of your petitioner's said automobile, striking said automobile of your petitioner and knocking it about 15 feet from said pavement, causing your petitioner's automobile to collide against another automobile, standing off said paved road, with great force and violence."

A general demurrer, and a special demurrer to paragraph 4 of the petition, were filed by the defendant. The court sustained these demurrers, with leave to amend within ten days, otherwise the petition to stand dismissed.

Within the time specified, the plaintiff amended his petition by inserting a new paragraph: "(4 1/2) Said contract of employment included, as aforesaid, services to be performed for defendant at Leary, Georgia, but included other services required of him by the defendant, to wit: he was required by defendant to travel to and from Leary, Georgia, only by daylight; he was hired principally as an industrial electrician which included keeping the Leary plant in repair, training other employees, making purchases of machinery, repair parts, etc., in Albany, Georgia, consultation in Albany, Georgia, with the defendant, making trips for defendant to other cities, and transportation to or from Albany, Georgia, to Leary, Georgia, of repair parts, mail, and commodities for defendant, by automobile, for all of which said employee was paid by defendant, it being a fact that said employee was not hired by defendant by the hour, nor for services to be performed for defendant at its plant in Leary, Georgia, only, but the employment being general in its nature, and included the time consumed in travel between Albany, Georgia, and Leary, Georgia, for which time said employee received compensation as well as traveling expenses from the defendant, and under the terms of said employment said employee was acting within the scope of his employment and in the furtherance of the business of the defendant and in accordance with defendant's direction at the time of the said collision."

The general and special demurrers to the petition were renewed after the foregoing amendment, and the trial court sustained the demurrers and dismissed the petition as amended. The case is here on exceptions to this judgment. 1. Under the doctrine of respondeat superior as applied in this State, every person is liable for the torts of his servant committed in the prosecution and within the scope of his business, whether the same is by negligence or voluntary. See Code, § 105-108. In the case at bar the question which arises, upon the sustaining of a general demurrer, is whether the facts alleged in the petition, when construed most strongly against the pleader, show as a matter of law that at the time of the accident Hufstettler was acting within the scope of his employment. No issue has been made as to other questions which might arise on general demurrer, and it appears to be conceded that the allegations as to jurisdiction and negligence are sufficient to support a cause of action. The question of ownership of the automobile is immaterial, so long as it is made to appear that the servant employee was operating it while under the control and direction of his employer, and within the scope of his employment. Massachusetts Cotton Mills v.Byrd, 38 Ga. App. 241 (143 S.E. 610). The pleader has alleged as a conclusion that the employee was acting within the scope of his employment. This conclusion must be construed in view of the specific allegations of the petition which support it, and if there is any conflict, the specific allegations will be controlling. McClure Ten Cent Co. v. Humphries, 29 Ga. App. 524 (116 S.E. 54); Stewart v. Peerless Furniture Co.,70 Ga. App. 236 (3, 4) (28 S.E.2d 396). The petitioner states that the employee's "trade and contract with the defendant includes the privilege and duty of going to and from Leary to carry on the business of his said employer, the contract of employment providing for said employee to go to Leary, Georgia, each morning and return to his home in Albany, Georgia, by automobile in the afternoon or evening." Properly construed, this allegation means that the employee is permitted and required to live in Albany, has duties in Leary, and in order for him to carry out these duties it is necessary for him to travel from Albany to Leary each morning, and return in the afternoon or evening. The petition nowhere alleges whether or not the employee was on his way to work, but does conclude that the employee was acting within the scope of his employment at the time of the accident, and although this conclusion is not warranted from the above allegation as to the contract providing for the employee to go to Leary, Georgia, each morning, considered with the other allegations the conclusion that he was proceeding from his home in Albany to his place of work in Leary is justified, but ordinarily an employee who is on his way to work is not acting within the scope of his employment, as he has not yet commenced to attend to the business of his employer. See Elrod v. AnchorDuck Mills, 50 Ga. App. 531, 533 (179 S.E. 188); Stenger v.Mitchell, 70 Ga. App. 563 (28 S.E.2d 885), and citations. The alleged facts in the present case distinguish it from the holdings in these cases. According to the amended petition, the contract of employment with Hufstettler required that he travel only by daylight, and included duties in Albany concerning purchases of machinery and repair parts and consultation with his employer, and making trips to other cities as well as Leary, and he was paid for the time consumed in travel between Albany and Leary, received traveling expenses for this travel, and his employment was general in nature. This is somewhat analogous to the case of a traveling salesman engaged in travel by automobile between two cities in which he is required to work, and in cases arising under the workmen's compensation law this has been held within the course of employment. See U.S. Fidelity GuarantyCompany v. Skinner, 188 Ga. 823, 826 (5 S.E.2d 9), and the cases there cited. Compare Cooper v. Lumbermen's MutualCasualty Co., 179 Ga. 256 (1) (175 S.E. 577), also a workmen's compensation case, where it was held that under the evidence a finding by the board was authorized to the effect that the employee's work began at the mill, although after reporting there each day he was required to travel on the truck of a third person to a point 20 miles away to the place of actual work. In the present case, under the facts alleged, while the employee of the defendant was traveling back and forth between Albany and Leary, he was acting within the time covered by his employment and for which he was paid, and under his contract of employment it was his "privilege and duty" to make these trips, and he was engaged in serving his master in the scope of his employment which was general in its nature.

2. The only question presented by special demurrer was directed to the completeness of paragraph 4 of the original petition, which sets out the contract of employment and duties of the employee, and was based on the grounds that it is vague and indefinite, and plaintiff by his amendment to the petition, setting out details of the duties of the employee, has met the objections raised by special demurrer.

3. The petition as amended states a cause of action, and the court erred in sustaining the demurrers and in dismissing the petition.

Judgment reversed. Felton and Parker, JJ., concur.