McCord v. McElroy

Quillian, J.,

concurring specially. While in accord with the majority opinion I think the petition would without aid of Code (Ann.) § 68-301 set’forth a cause of action. It contains a general allegation that sufficiently alleged that Gary McElroy was the servant of the defendants and acting within the scope of his employment when he committed all of the acts resulting in the plaintiff’s injuries. Conney v. Atlantia Greyhound Corp., 81 Ga. App. 324 (68 S. E. 2d 559); Planters Cotton-Oil Co. v. Baker, 181 Ga. 161 (181 S. E. 671); Williams v. Ballenger, 87 Ga. App. 255, 260 (73 S. E. 2d 509); Garver v. Smith, 90 Ga. App. 892, 896 (84 S. E. 2d 693).

Not in every case is the act of the servant in eliciting the aid of a third person to assist in the transaction of the master’s business without the scope of his employment. In McGhee v. Kingman & Everett, Inc., 49 Ga. App. 767 (2) (176 S. E. 55) is the holding: “ 'In determining the liability of the master for the negligent or wilful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.’ Gomez v. Great Atlantic & Pacific Tea Co., 48 Ga. App. 398 (172 S. E. 750). 'The agent’s authority will be construed to include all necessary and usual means for effectually executing it.’ Civil Code (1910) § 3595. Thus, where a servant is employed to take and deliver goods of the master in the master’s truck to customers in another city, and after their delivery to return the truck to the master’s place of business, and while they are thus en route a blowout of a heavy tire occurs, rendering its repair or change to another tire necessary, the servant, in the absence of contrary instructions, is authorized to do all things essential to the conduct of such business for the master; and this includes the right, so far as reasonably necessary, to obtain the assistance of another in the furnishing of needful light for the work of changing the tire when the blowout occurs at night.”