2020 Georgia Code
Title 10 - Commerce and Trade
Chapter 6 - Agency
Article 3 - Rights and Liabilities of Principal to Third Persons
§ 10-6-61. When Principal Liable for Agent's Willful Trespass

The principal shall not be liable for the willful trespass of his agent unless done by his command or assented to by him.

(Orig. Code 1863, § 2181; Code 1868, § 2177; Code 1873, § 2203; Code 1882, § 2203; Civil Code 1895, § 3031; Civil Code 1910, § 3603; Code 1933, § 4-312.)

- For note discussing the doctrine of respondeat superior, see 2 Ga. St. B. J. 478 (1966).

ANALYSIS

• General Consideration
• Evidence
• Application

General Consideration

Meaning of "trespass".

- In its broader sense, a "trespass" comprehends any misfeasance, transgression, or offense which damages another person's health, reputation, or property. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

Any abuse of, or damage done to, the personal property of another, unlawfully, is a "trespass" for which damages may be recovered. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

Summary judgment for a lender in an owner's suit claiming that the lender trespassed on the owner's property was proper because the security deed provided that the lender was allowed to take action to preserve the lender's interest in the property in the event of a default on the payments, and the owners admitted the owners were in default of those payments; further, both of the owners admitted that the owners had no evidence that the lender authorized anyone to remove the personal property from the home. Tacon v. Equity One, Inc., 280 Ga. App. 183, 633 S.E.2d 599 (2006).

Former Code 1933, §§ 4-312 and 105-108 (see now O.C.G.A. §§ 10-6-61 and51-2-2) should be construed together, so as to harmonize the statutes and allow both to remain of force, in the cases to which the statutes were applicable. Western & Atl. R.R. v. Turner, 72 Ga. 292, 53 Am. R. 842 (1884); Toole Furn. Co. v. Ellis, 5 Ga. App. 271, 63 S.E. 55 (1908); Mason v. Nashville, C. & St. L. Ry., 135 Ga. 741, 70 S.E. 225, 33 L.R.A. (n.s.) 280 (1911); Southeastern Fair Ass'n v. Wong Jung, 24 Ga. App. 707, 102 S.E. 32 (1920), aff'd, 151 Ga. 85, 105 S.E. 847 (1921).

Former Code 1933, §§ 4-312 and 105-108, being in pari materia, must be construed together. Planters Cotton Oil Co. v. Baker, 181 Ga. 161, 181 S.E. 671 (1935).

Former Code 1933, § 4-312 was in pari materia with former Code 1933, § 105-108, and must be construed therewith and the two sections harmonized. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

O.C.G.A. § 10-6-61 must be construed in pari materia with § 51-2-2 and, so construed, means that the principal may be liable if trespass was committed by the principal's implied command or implied assent; and if committed within scope of agency, implication will arise as a matter of law. Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981).

O.C.G.A. § 10-6-61 must be construed in pari materia with O.C.G.A. § 10-6-60; the distinction is that under O.C.G.A. § 10-6-60 the principal is liable for fraud or neglect of the principal's agent "in the transaction of the principal's business." The "assent" of the principal which under § 10-6-61 binds the principal to the willful trespass is deemed to exist implicitly if the act was "in the transaction of the principal's business." There is no conflict in these two statutes. Sasser v. Mixon Contracting, Inc., 181 Ga. App. 710, 353 S.E.2d 525 (1987).

- While former Code 1933, § 4-312 declared that "the principal is not liable for the willful trespass of his agent, unless done by his command or asserted to by him," § 51-2-2 makes a person liable "for torts committed by his servant, by his command or in the prosecution and within the scope of his business, whether the same is by negligence or voluntary." Thus, a master is deemed to have impliedly "assented" to and becomes liable for the willful torts of the master's servant only when the torts are committed "in the prosecution and within the scope of his business," and notwithstanding that, under common law and earlier decisions, an employer was not liable for the malicious and intentional torts of an employee, although committed while forwarding the employer's business; the rule is that a master is liable for the willful torts of the master's servant, committed in the course of the servant's employment, just as though the master had personally committed the torts. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).

- If the servant acts not in the prosecution of the master's business or within the scope of such business, the master cannot be held liable, no matter how wanton or willful the conduct of the servant, so that if the servant, wholly for a purpose of the servant's own, disregarding the object for which the servant is employed, and not intending by the servant's act to execute it, does an injury to another not within the scope of the servant's employment, the master is not liable. But if the act is done in the execution of the authority given the servant by the servant's master and for the purpose of performing what the master has directed, the master will be responsible, whether the wrong done is occasioned by negligence or by a wanton or reckless purpose to accomplish the master's business in an unlawful manner. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).

- While a principal is not, as a general rule, liable for the willful trespass of the principal's agent, yet, if the trespass is committed by the principal's command, or if it is assented to by the principal, the principal is liable under this section. Byne v. Hatcher, 75 Ga. 289 (1885); Crockett Bros. v. Sibley, 3 Ga. App. 554, 60 S.E. 326 (1908).

- Former Code 1933, § 105-108 was not contrary to former Code 1933, § 4-312, because former Code 1933, § 4-312, properly construed did not mean the principal was not liable for the willful trespass of the principal's agent unless done by the principal's express command or assent, but the principal may be liable if the trespass was committed by the principal's implied command or implied assent, and if committed within the scope of the agency, the implication will arise as a matter of law. Planters Cotton Oil Co. v. Baker, 181 Ga. 161, 181 S.E. 671 (1935); Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324, 58 S.E.2d 559 (1950).

If the tort of the agent is committed in the prosecution and within the scope of the principal's business, it is done with the implied command or assent of the principal, and in such case it is unnecessary to make proof of an express command or assent. Planters Cotton Oil Co. v. Baker, 181 Ga. App. 161, 181 S.E. 671 (1935).

If an agent commits a trespass in the prosecution of the corporation's business, it is by implication of law committed by command of the principal or with the principal's consent. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

Since the determinative question in a case of a principal's liability is whether the act of the agent is done in the prosecution and within the scope of the principal's business, either command or assent can be implied. Greenbaum v. Brooks, 110 Ga. App. 661, 139 S.E.2d 432 (1964).

If an agent commits a trespass in the prosecution of the principal's business, it is by implication of law committed by command of the principal or with the principal's consent. Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 208 S.E.2d 321 (1974).

- There should not be made any distinction between the relationships of principal and agent and that of master and servant, so as to make different rules of liability apply, according to the nature of the relationship. Planters Cotton Oil Co. v. Baker, 181 Ga. 161, 181 S.E. 671 (1935).

Whether tort-feasor was an agent or a servant makes no difference in applying the doctrine of respondeat superior; if the tort-feasor's wrongful acts were in the prosecution of the defendant's business and within the scope of the employment, then the defendant is liable for such tortious conduct of the defendant's servant or agent, as the case may be. Prince v. Brickell, 87 Ga. App. 697, 75 S.E.2d 288 (1953).

Cited in Ogletree v. MacDougald Constr. Co., 45 Ga. App. 128, 163 S.E. 320 (1932); Personal Fin. Co. v. Loggins, 50 Ga. App. 562, 179 S.E. 162 (1935); Wren Mobile Homes, Inc. v. Midland-Guardian Co., 117 Ga. App. 22, 159 S.E.2d 734 (1967); Sisk v. Carney, 121 Ga. App. 560, 174 S.E.2d 456 (1970).

Evidence

Jury charge on ratification.

- It was not error for the court, in giving in charge to the jury the language of this section, to add, after the words "by his command or assented to by him," the words "or ratifies it." Crockett Bros. v. Sibley, 3 Ga. App. 554, 60 S.E. 326 (1908).

- Principal may be liable for the willful tort of the principal's agent, done in the prosecution and within the scope of the principal's business, although it is not expressly shown that the principal either commanded the commission of the willful act or assented to the act. Planters Cotton Oil Co. v. Baker, 181 Ga. 161, 181 S.E. 671 (1935).

Application

Fact tort-feasor is director or officer does not make corporation liable.

- Mere fact that one who commits a tort is a director in a corporation does not, without more, render the corporation liable therefor. Strickland v. Bank of Cartersville, 141 Ga. 565, 81 S.E. 886 (1914).

Mere fact that one who commits a tort is a director and officer of a corporation does not, without more, render the corporation liable. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

- No matter how much authority a general agent may have, it is not to be presumed that the agent has authority to commit a tort, and, in order to hold the defendant corporation liable for the act of the corporation's officer, such tort must have been committed during the prosecution of the business of the corporation as a part thereof or by authority of the corporation or be ratified by the corporation or assented to. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

- Corporation is not liable for the malicious acts of the corporation's agent or officer unless the acts are authorized, or were within the scope of the agent's duties, or were in themselves a violation of a duty owed by the corporation to the party injured, or such acts were ratified by the corporation. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

- Corporation may only be liable for slander expressly ordered or directed, and in slander situations only for those words spoken by the corporation's command. Church of God, Inc. v. Shaw, 194 Ga. App. 694, 391 S.E.2d 666, cert. denied, 194 Ga. App. 911, 391 S.E.2d 666 (1990).

- Neither a carrier nor one who furnishes to a carrier terminal facilities for taking on passengers, owing a duty to one who is a passenger, violates that duty through any act of a servant towards the passenger, when servant committing the act has not been intrusted with the performance of any duty owing by master to passenger and when master is not negligent in failing to anticipate, or to prevent, the performance of the act of the servant. Massengale v. Atlanta, Birmingham & Coast Line R.R., 46 Ga. App. 484, 168 S.E. 111 (1933).

Principal is liable in a proper case for malicious prosecution, if the prosecution is conducted by the agent in furtherance of the business of the principal and within the scope of the agent's authority. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

- If it is alleged in a suit for damages for malicious prosecution that the prosecution was instituted by the agent of the defendant, it must be proved that the agent was at that time acting within the scope of the agent's employment or at the direction or command of the agent's principal. The plaintiff having failed to prove the plaintiff's case as laid in the plaintiff's pleading the court did not commit error in granting a nonsuit. Glass v. Brittain Bros. Co., 21 Ga. App. 634, 94 S.E. 814 (1918).

In order for a bank to be held liable for a malicious prosecution instigated by a false statement made by the bank's agent or the bank's executive vice-president, it must appear that the bank authorized such malicious prosecution and that the prosecution was done by the officer and agent, acting within the scope of the officer's or agent's employment or at the discretion or command of the bank. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

- Bank is not liable for a malicious prosecution in which the bank's vice-president participated, encouraged and aided, and purported to act for the corporation, since it does not affirmatively appear that the bank authorized the vice-president to engage in such prosecution or aid and abet therein or that the bank assented thereto or ratified the prosecution. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

Banking corporation is not liable for damages resulting from a false statement maliciously and willfully made by the bank's executive vice-president, thereby inducing another to institute without probable cause and maliciously a criminal prosecution against another, even when in making such false statement the officer of the corporation was acting in the officer's capacity as such officer and for the corporation, and within the scope of the officer's agency with the corporation, unless it affirmatively appears that such officer had authority from the corporation to make such false statement. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

- Principal is not liable for a malicious arrest by an agent, which was beyond the scope of the agent's authority and neither authorized or ratified by the principal. Fire Ass'n v. Fleming, 78 Ga. 733, 3 S.E. 420 (1887).

- If the agent of a corporation engaged in the business of selling certain commercial products manufactured by the corporation committed an unprovoked assault and battery upon the plaintiff, inflicting upon the plaintiff severe personal injuries, the plaintiff could not maintain a suit for damages against the corporation on this account, although it knew that the agent was a person of violent temper and in fact had employed the agent because it knew that the agent was a man prone to make unprovoked attacks upon others; it not appearing that the corporation authorized the assault or that the corporation assented to the tort complained of. Murphey v. New S. Brewery & Ice Co., 145 Ga. 561, 89 S.E. 704 (1916).

It appearing from the plaintiff's pleading that the alleged injury arose from an assault by a person alleged to be the manager of the defendant corporation; that the plaintiff approached the office of the corporation, not for the purpose of transacting any sort of business, but from mere idle curiosity, to hear a conversation between the manager and a third person; that the assault did not arise from the business of the corporation or in connection with the assailant's duties as manager, but arose from a merely personal altercation; and that the assailant left the corporation's place of business and struck the plaintiff on steps, which, though alleged to have been used jointly by the corporation and by a hotel company as an entrance, are not alleged to have been a part of the defendant's premises, the pleading does not show liability on the part of the corporation. Daniel v. Excelsior Auto Co., 31 Ga. App. 621, 121 S.E. 692 (1924).

RESEARCH REFERENCES

Am. Jur. 2d.

- 3 Am. Jur. 2d, Agency, § 245.

- 2A C.J.S., Agency, § 447 et seq.

- Personal liability of servant or agent to third person for injuries caused by the performance or nonperformance of his duties to his employer, 20 A.L.R. 97; 99 A.L.R. 408; 96 A.L.R.2d 208.

Liability of infant for torts of his employee or agent, 103 A.L.R. 487.

Status of gasoline and oil distributor or dealer as agent, employee, independent contractor, or independent dealer as regards responsibility for injury to person or damage to property, 83 A.L.R.2d 1282.

Principal's liability for false arrest or imprisonment caused by agent or servant, 92 A.L.R.2d 15; 93 A.L.R.3d 826.

Release of (or covenant not to sue) master or principal as affecting liability of servant or agent for tort, or vice versa, 92 A.L.R.2d 533.

Personal liability of auctioneer to owner or mortgagee for conversion, 96 A.L.R.2d 208.

Principal's liability for punitive damages for false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826.