Rivers v. Mathews

96 Ga. App. 546 (1957) 100 S.E.2d 637

RIVERS et al.
v.
MATHEWS.

36882.

Court of Appeals of Georgia.

Decided October 22, 1957.

Graydon D. Reddick, Wright & Reddick, for plaintiffs in error.

Henry W. Mathews filed an action for damages against James S. Rivers and Southeastern Broadcasting System, Inc., the action being in two counts.

QUILLIAN, J.

1. The petition alleges that the publication upon which the cause is based was made by an employee of either a named person, partnership, or corporation. The alternative allegation that such person was the employee of one of the legal entities mentioned is not an affirmative averment that he was the employee of any of them. Jones v. Hall, 57 Ga. App. 477, 478 (4) (195 S. E. 879); Groover v. Savannah Bank & Trust Co., 186 Ga. 476, 478 (198 S. E. 217); Overton v. Alford, 210 Ga. 780 (82 S. E. 2d 836). In the cases cited the manner in which the cause of action accrued alleged in the alternative was held insufficient. In this case the allegation as to who is liable for the commission of an alleged tort is in the alternative. The principle in the cases cited and the case at bar is the same.

2. The petition which seeks to charge the defendants with liability for the act of a servant respondent, contains no allegation that the servant was acting within the scope of his employment or in the prosecution of his employer's business, and did not show that the nature of the employee's service was such that his authority to perform the act on behalf of his employer could be legitimately inferred. For this reason the petition failed to show any liability on the part of either of the defendants for the conduct of the employee. Code § 105-108; Laughlin v. Bon Air Hotel, 85 Ga. App. 43 (2) (68 S. E. 2d 186); Frazier v. Southern Ry. Co., 73 Ga. App. 58 (35 S. E. 2d 525); Tate v. Atlantic Ice & Coal Corp., 25 Ga. App. 797 (1, 2) (104 S. E. 913).

3. In the cases of Ozborn v. Woolworth, 106 Ga. 459 (32 S. E. 581) and Southern Railway Co. v. Chambers, 126 Ga. 404 (55 S. E. 37, 7 L. R. A. (NS) 926) it is held that the doctrine of respondeat superior is not applicable to actions for slander, though where the defamatory words are spoken in pursuance to a mutual design of the parties, one may become liable for slander published by another. Lanham v. Keys, 31 Ga. App. 635 (121 S. E. 856). No allegations bringing this case within the latter rule are contained in the petition.

4. For the reasons assigned in the third headnote no cause for slander was set out in the petition, and for the reasons assigned in headnotes 1 and 2 no right of recovery for slander or invasion of privacy was set forth.

5. In view of the conclusions expressed in the preceding paragraphs it is unnecessary to pass upon whether the publication of the words alleged in the petition was actionable slander or an invasion of the plaintiff's privacy.

Judgment reversed. Felton, C. J., and Nichols, J., concur.