2020 Georgia Code
Title 51 - Torts
Chapter 2 - Imputable Negligence
§ 51-2-2. Liability for Torts of Spouse, Child, or Servant in Certain Instances

Universal Citation: GA Code § 51-2-2 (2020)

Every person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.

(Orig. Code 1863, § 2904; Code 1868, § 2910; Code 1873, § 2961; Code 1882, § 2961; Civil Code 1895, § 3817; Civil Code 1910, § 4413; Code 1933, § 105-108.)

Law reviews.

- For article, "Motorboat Collisions and the Family Purpose Doctrine," see 2 Ga. St. B. J. 473 (1966). For article analyzing the trend in this country toward no-fault liability, see 25 Emory L.J. 163 (1976). For article, "Sexual Harassment Claims Under Georgia Law," see 6 Ga. St. B. J. 16 (2000). For annual survey on labor and employment law, see 71 Mercer L. Rev. 137 (2019). For note, "Effect of Verdict for Employee in Joint Action Against Employer and Employee," see 3 Mercer L. Rev. 298 (1952). For note discussing the doctrine of respondeat superior, see 2 Ga. St. B. J. 478 (1966). For note discussing the family purpose car doctrine as an extension of the principle of respondeat superior, see 3 Ga. St. B. J. 112 (1966). For note discussing governmental immunity from tort liability in Georgia, see 5 Ga. St. B. J. 494 (1969). For note, "Tort Liability in Georgia for the Criminal Acts of Another," see 18 Ga. L. Rev. 361 (1984). For note, "Publicly Funded Private Security: A Critical Examination of Georgia Law Pertaining to the Private Employment of Off-Duty Police Officers," see 51 Ga. L. Rev. 879 (2017). For comment on Durden v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 (1946), see 9 Ga. B. J. 98 (1946). For comment on Cohen v. Whiteman, 75 Ga. App. 286, 43 S.E.2d 184 (1947), see 10 Ga. B. J. 222 (1947). For comment on Woolf v. Colonial Stores, Inc., 76 Ga. App. 565, 46 S.E.2d 620 (1948), see 11 Ga. B. J. 70 (1948). For comment regarding joinder of master and servant as parties defendant, in light of Southern Ry. v. Garland, 76 Ga. App. 729, 47 S.E.2d 93 (1948), see 11 Ga. B. J. 226 (1948). For comment on Colonial Stores, Inc. v. Sasser, 79 Ga. App. 604, 54 S.E.2d 719 (1949), see 12 Ga. B. J. 215 (1949). For comment on Davidson v. Harris, Inc., 81 Ga. App. 665, 59 S.E.2d 551 (1950), see 13 Ga. B. J. 229 (1950). For comment on Radio Cabs, Ltd. v. Tolbert, 86 Ga. App. 181, 70 S.E.2d 260 (1952), see 15 Ga. B. J. 226 (1952). For comment on Henson v. Garnto, 88 Ga. App. 320, 76 S.E.2d 636 (1953), regarding recovery by wife under doctrine of respondeat superior for injuries caused by husband, see 5 Mercer L. Rev. 209 (1953). For comment discussing liability of husband to wife for tort caused by their minor child, in light of Silverman v. Silverman, 145 Conn. 663, 145 A.2d 826 (1958), see 10 Mercer L. Rev. 339 (1959). For comment on Myrick v. Alexander, 101 Ga. App. 1, 112 S.E.2d 697 (1960), see 22 Ga. B. J. 570 (1960). For comment on Marques v. Ross, 105 Ga. 133, 123 S.E.2d 412 (1961), and application of the family purpose doctrine, see 14 Mercer L. Rev. 297 (1962). For comment on Ferguson v. Gurley, 105 Ga. App. 575, 125 S.E.2d 218 (1962), see 25 Ga. B. J. 209 (1962). For comment on Emory Univ. v. Porter, 103 Ga. App. 752, 121 S.E.2d 668 (1961), as to hospital's liability for the negligence of a physician, see 14 Mercer L. Rev. 467 (1963). For comment on Porter v. Patterson, 107 Ga. App. 64, 129 S.E.2d 70 (1962), see 26 Ga. B. J. 184 (1963). For comment on Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), holding employer defendant may not use independent contractor defense to invasion of privacy suit resulting from actions of investigator working in his behalf, see 9 Ga. St. B. J. 519 (1973).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Torts of Spouse
  • Torts of Child
  • Vicarious Liability
  • Family Purpose Doctrine
  • Torts of Servant
  • Torts of Servant - Specific Cases
General Consideration

Cited in Peeples v. Brunswick & A.R.R., 60 Ga. 281 (1878); Louisville & N.R.R. v. Blackmon, 3 Ga. App. 80, 59 S.E. 341 (1907); Seaboard Air-Line Ry. v. Arrant, 17 Ga. App. 489, 87 S.E. 714 (1916); Fisher v. Georgia N. Ry., 35 Ga. App. 733, 134 S.E. 827 (1926); Massachusetts Cotton Mills v. Byrd, 38 Ga. App. 241, 143 S.E. 610 (1928); Spaulding Oil Mill, Inc. v. Mayes, 48 Ga. App. 613, 172 S.E. 734 (1934); Harmon v. Southeastern Compress & Whse. Co., 48 Ga. App. 392, 172 S.E. 748 (1934); Personal Fin. Co. v. Loggins, 50 Ga. App. 562, 179 S.E. 162 (1935); Holland v. Bullock, 55 Ga. App. 605, 190 S.E. 877 (1937); Minter v. Kent, 62 Ga. App. 265, 8 S.E.2d 109 (1940); Goldstein v. Johnson, 64 Ga. App. 31, 12 S.E.2d 92 (1940); Smith v. Colonial Stores, Inc., 72 Ga. App. 186, 33 S.E.2d 360 (1945); Lewis v. Miller Peanut Co., 77 Ga. App. 380, 49 S.E.2d 221 (1948); Davidson v. Harris, 79 Ga. App. 788, 54 S.E.2d 290 (1949); Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285, 76 S.E.2d 647 (1953); Southard v. Hitchcock, 89 Ga. App. 322, 79 S.E.2d 342 (1953); Ledman v. Calvert Iron Works, Inc., 92 Ga. App. 733, 89 S.E.2d 832 (1955); Young v. Kickliter, 213 Ga. 42, 96 S.E.2d 605 (1957); Hines v. Bell, 104 Ga. App. 76, 120 S.E.2d 892 (1961); Ford Motor Co. v. Williams, 219 Ga. 505, 134 S.E.2d 32 (1963); Parrott v. Fletcher, 113 Ga. App. 45, 146 S.E.2d 923 (1966); Parrott v. Edwards, 113 Ga. App. 422, 148 S.E.2d 175 (1966); Saunders v. Vikers, 116 Ga. App. 733, 158 S.E.2d 324 (1967); Smallwood v. Hall County, 116 Ga. App. 720, 158 S.E.2d 443 (1967); Dettmering v. United States, 308 F. Supp. 1185 (N.D. Ga. 1969); Stewart v. Roberts, 132 Ga. App. 700, 209 S.E.2d 119 (1974); Larymore v. Brush & Collier Bldrs., 134 Ga. App. 863, 216 S.E.2d 683 (1975); Grant v. Jones, 168 Ga. App. 690, 310 S.E.2d 272 (1983); Cummings v. Walsh Constr. Co., 561 F. Supp. 872 (S.D. Ga. 1983); Smith v. Hawks, 182 Ga. App. 379, 355 S.E.2d 669 (1987); Coley v. Evans Mem. Hosp., 192 Ga. App. 423, 385 S.E.2d 100 (1989); Crowe v. Fleming, 749 F. Supp. 1135 (S.D. Ga. 1990); Gaskins v. Gaona, 209 Ga. App. 322, 433 S.E.2d 408 (1993); Knight v. Wal-Mart Stores, Inc., 889 F. Supp. 1532 (S.D. Ga. 1995); Waters v. Steak & Ale of Ga., Inc., 241 Ga. App. 709, 527 S.E.2d 592 (2000); Stephens v. Greensboro Props., LP, 247 Ga. App. 670, 544 S.E.2d 464 (2001); Honig v. Comcast of Ga. I, LLC, 537 F. Supp. 2d 1277 (N.D. Ga. 2008); DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 668 S.E.2d 737 (2008); Safi-Rafiq v. Balasubramaniam, 298 Ga. App. 274, 679 S.E.2d 822 (2009).

Torts of Spouse

Husband is not liable for torts of his wife merely because of the relationship. Durden v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 (1946).

Tort must be based on spouse's direction.

- In this state a husband now is liable for the torts of his wife only when they are committed by her in the capacity of agent; and when it is sought to hold the husband liable for some wrong committed by her within the scope of her agency, a suit may be maintained against the husband without joining the wife as a party defendant. Miller v. Straus, 38 Ga. App. 781, 145 S.E. 501 (1928).

In Georgia, a husband is not liable for the torts of his wife, except as such liability may arise by reason of the commission of the act "by his command or in the prosecution and within the scope of his business." Farrar v. Farrar, 41 Ga. App. 120, 152 S.E. 278 (1930).

Facts must show agency relationship.

- Marital relationship alone will not, in view of the modification of the common-law rule of liability in this state, support an action against a husband for the tort of his wife in the absence of facts showing an agency relationship. Shelton v. Doster, 99 Ga. App. 863, 109 S.E.2d 862 (1959).

Husband not liable for independent tort of wife.

- A husband, under this section, and existing statutes enlarging the rights and functions of married women, is not liable for an independent tort committed by the wife in the operation of an automobile not furnished by him to the wife, and not used in the husband's business, but operated without his consent, command, or participation in any way. Shelton v. Doster, 99 Ga. App. 863, 109 S.E.2d 862 (1959).

Not necessary to join husband as defendant.

- In a suit against a married woman for a tort, whether the husband would or would not be liable, under the doctrine of respondeat superior, it is not necessary that the husband be joined as a defendant in the action. Farrar v. Farrar, 41 Ga. App. 120, 152 S.E. 278 (1930).

Torts of Child

Causes of action against parents of minor tort-feasors are rooted in common law and are predicated on something more than mere parent-child relationship. Scarboro v. Lauk, 133 Ga. App. 359, 210 S.E.2d 848 (1974); Muse v. Ozment, 152 Ga. App. 896, 264 S.E.2d 328 (1980).

Liability of parent for injury committed by child is governed by ordinary principles of liability of principal for the acts of one's agent, or a master for the master's servant. Stanford v. Smith, 173 Ga. 165, 159 S.E. 666, answer conformed to, 43 Ga. App. 747, 160 S.E. 93 (1931); Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167, answer conformed to, 52 Ga. App. 262, 183 S.E. 98 (1935); Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766 (1971); Scarboro v. Lauk, 133 Ga. App. 359, 210 S.E.2d 848 (1974); Muse v. Ozment, 152 Ga. App. 896, 264 S.E.2d 328 (1980).

Parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship; when liability exists it is based on a principal-agent or a master-servant relationship when the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality. Hill v. Morrison, 160 Ga. App. 151, 286 S.E.2d 467 (1981).

Father not liable for tort of his minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit. Chastain v. Johns, 120 Ga. 977, 48 S.E. 343, 66 L.R.A. 958 (1904); Schumer v. Register, 12 Ga. App. 743, 78 S.E. 731 (1913).

So far as the liability of a father is concerned, the tort must have been committed by the child by his command or in the prosecution and within the scope of his business. The father is liable for the child's torts only upon the idea that the child was his servant, and to the extent that he would be liable for the torts of any other servant. The rule, being taken from the common law, is to be liberally construed. Stanford v. Smith, 173 Ga. 165, 159 S.E. 666, answer conformed to, 43 Ga. App. 747, 160 S.E. 93 (1931); Stephens v. Stewart, 118 Ga. App. 811, 165 S.E.2d 572 (1968), aff'd in part and rev'd in part, 225 Ga. 185, 166 S.E.2d 890 (1969).

Father is not liable for tort of minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit, merely because of the relation of parent and child. Stanford v. Smith, 173 Ga. 165, 159 S.E. 666, answer conformed to, 43 Ga. App. 747, 160 S.E. 93 (1931); Hulsey v. Hightower, 44 Ga. App. 455, 161 S.E. 664 (1931); Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167, answer conformed to, 52 Ga. App. 262, 183 S.E. 98 (1935); Herrin v. Lamar, 106 Ga. App. 91, 126 S.E.2d 454 (1962); Wittke v. Horne's Enters., Inc., 118 Ga. App. 211, 162 S.E.2d 898 (1968); Stephens v. Stewart, 118 Ga. App. 811, 165 S.E.2d 572 (1968), aff'd in part and rev'd in part, 225 Ga. 185, 166 S.E.2d 890 (1969).

Son as father's agent.

- Under evidence which shows that a son assisted in doing little things around the home, making minor repairs, and that a stairway fell when the son was using it, and he repaired it with some nails, there was some direct evidence that the son was the father's agent. Butler v. Moore, 125 Ga. App. 435, 188 S.E.2d 142 (1972).

Section applicable only to vicarious liability and not to parent's own negligence.

- Principles of this section are applicable to cases when it is sought to hold a father liable for an injury by his child, independently of any fault on the part of the father, but are not applicable when a liability is claimed against the father for a negligent or wrongful act which is personal to himself, although the act of his child may be the immediate cause of the injury. Hulsey v. Hightower, 44 Ga. App. 455, 161 S.E. 664 (1931).

Parent may be liable for own negligence when it makes child's act possible.

- Parent may be held liable for an injury caused directly by his minor child when the parent's own original negligence or contributing negligence has made the child's act possible. Stephens v. Stewart, 118 Ga. App. 811, 165 S.E.2d 572 (1968), aff'd in part and rev'd in part, 225 Ga. 185, 166 S.E.2d 890 (1969).

If the act of a child is legally traceable to the negligence of its father, the latter may be held responsible for injury and damage occasioned thereby; but in such a case the cause of action is founded upon the negligence of the father, and not upon the negligence of the child plus the paternal relation. Hulsey v. Hightower, 44 Ga. App. 455, 161 S.E. 664 (1931).

If a parent knows the parent's child is irresponsible, incompetent or unqualified regarding certain activities, and knowingly permits the child to engage in such activities, this may constitute such negligence on the part of the parent as will support a recovery. Stephens v. Stewart, 118 Ga. App. 811, 165 S.E.2d 572 (1968), aff'd in part and rev'd in part, 225 Ga. 185, 166 S.E.2d 890 (1969).

Recovery is permitted when there was some parental negligence in furnishing or permitting a child access to an instrumentality with which the child likely would injure a third party. Muse v. Ozment, 152 Ga. App. 896, 264 S.E.2d 328 (1980).

Injury must be reasonably foreseeable.

- In cases predicated on the parent's negligence, the ordinary element of all negligence cases must be shown including, of course, the requirement that the parent should have foreseen or anticipated that some injury would likely result from the negligence. Stephens v. Stewart, 118 Ga. App. 811, 165 S.E.2d 572 (1968), aff'd in part and rev'd in part, 225 Ga. 185, 166 S.E.2d 890 (1969).

Parent's negligence based on breach of duty to supervise child.

- True test for determining whether a parent is liable for the negligence of a child is not the fact of escape, but is whether: (a) a duty was raised against the parent by the facts of the case of anticipating that in the absence of the parent's supervision a particular type of injury to another will result; and (b) whether the parent then exercised reasonable care to control and supervise the infant to prevent such result. Assurance Co. of Am. v. Bell, 108 Ga. App. 766, 134 S.E.2d 540 (1963).

True test of parental negligence vel non is whether in the exercise of ordinary care the parent should have anticipated that harm would result from the unsupervised activities of the child and whether, if so, the parent exercised the proper degree of care to guard against this result. Hill v. Morrison, 160 Ga. App. 151, 286 S.E.2d 467 (1981).

Parent not negligent absent knowledge of circumstances requiring special care.

- Failure to keep an "unremitting watch and restraint" over children in their own yard in the absence of knowledge of facts and circumstances requiring such action is not negligence. Scarboro v. Lauk, 133 Ga. App. 359, 210 S.E.2d 848 (1974).

When a parent has no special reason to anticipate that a child, either through known dangerous proclivities or because of possession of dangerous instrumentalities, may inflict harm on the person or property of others, mere failure to supervise the child's play activities is not a failure to exercise ordinary care on the part of the parent so as to subject the parent to liability. Muse v. Ozment, 152 Ga. App. 896, 264 S.E.2d 328 (1980).

Although recovery is permitted when through parental negligence a child is permitted access to an instrumentality which, if not properly used, is foreseeably likely to cause injury to a third person, this does not make the parent liable for an injury negligently inflicted by a child when there is no dangerous proclivity known to the former and no reason to anticipate the injury which in fact occurred. Hill v. Morrison, 160 Ga. App. 151, 286 S.E.2d 467 (1981).

Allowing a child unsupervised access to a golf club, without more, would not provide the evidence of parental negligence necessary for a recovery, as was the case when the instrument was a pistol, a shotgun, or a rotary lawnmower. Mayer v. Self, 178 Ga. App. 94, 341 S.E.2d 924 (1986).

Jury questions.

- Whether or not such precaution taken is sufficient to relieve the parents of responsibility for the death of a neighbor's child is not for the court to decide as a matter of law, but more properly for the jury as a matter of fact. Hill v. Morrison, 160 Ga. App. 151, 286 S.E.2d 467 (1981).

When the instrumentality of harm used by the child is a firearm or other explosive, liability is frequently imposed upon an offending parent, or at the least a jury question as to such liability arises. Hill v. Morrison, 160 Ga. App. 151, 286 S.E.2d 467 (1981).

When there was evidence that the defendants were aware of a previous incident in which the defendants' son had hurt someone with a golf club, a jury issue was presented as to whether the defendants should have anticipated injury to another through their child's use of a golf club. Mayer v. Self, 178 Ga. App. 94, 341 S.E.2d 924 (1986).

Vicarious Liability

Owner of automobile is not liable for negligence of its driver merely because one is the owner of the vehicle. Graham v. Cleveland, 58 Ga. App. 810, 200 S.E. 184 (1938); Holland v. Cooper, 192 F.2d 214 (5th Cir. 1951).

Owner is not liable for negligence of operator of automobile merely because owner consented, expressly or impliedly, to operation by such person. Graham v. Cleveland, 58 Ga. App. 810, 200 S.E. 184 (1938).

Owner of automobile who is present in vehicle is liable for negligence of driver. American Cas. Co. v. Windham, 26 F. Supp. 261 (M.D. Ga.), aff'd, 107 F.2d 88 (5th Cir. 1939), cert. denied, 309 U.S. 674, 60 S. Ct. 714, 84 L. Ed. 1019 (1940).

Owner liable if driver is acting as servant at time of wrongful act.

- In order to hold the owner liable under the doctrine of respondeat superior for the acts of the driver of a motor vehicle, the driver must be the agent or servant of the owner at the time of the wrongful act; and, in order to create such relationship, the essential and sufficient element is the owner's right to control and direct the driver's conduct. Powell v. Kitchens, 84 Ga. App. 701, 67 S.E.2d 203 (1951).

Effect of joint ownership of automobile.

- In the case of joint ownership of a motor vehicle, when there is no express statute on the subject, such ownership does not render one of such persons liable when the machine is operated by the other in one's personal affairs. Raley v. Hatcher, 61 Ga. App. 846, 7 S.E.2d 777 (1940).

Preemption.

- Immunity provision of the charter of the Macon Water Authority Act that exempted the Authority from vicarious liability was not preempted by O.C.G.A. § 51-2-2 and, therefore, did not offend Ga. Const. 1983, Art. III, Sec. VI, Par. IV (a). Matthews v. Macon Water Auth., 273 Ga. 436, 542 S.E.2d 106 (2001).

Family Purpose Doctrine

1. General Principles

Liability under family purpose doctrine rests upon same principles of law as that governing master and servant or principal and agent. Johnson v. Brant, 93 Ga. App. 44, 90 S.E.2d 587 (1955); Temple v. Chastain, 99 Ga. App. 719, 109 S.E.2d 897 (1959).

Family purpose doctrine is based on principles of agency. McCray v. Hunter, 157 Ga. App. 509, 277 S.E.2d 795 (1981).

Under the family purpose doctrine, the owner of an automobile who permits members of one's household to drive the automobile for their own pleasure or convenience is regarded as making such a family purpose one's business, so that the driver is treated as one's servant. Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981).

Liability under the family purpose doctrine rests upon a fictional agency theory. Shank v. Phillips, 193 Ga. App. 393, 388 S.E.2d 5 (1989).

Agency must be shown either in relationship of master and servant or under family car doctrine. Grahl v. McMath, 59 Ga. App. 247, 200 S.E. 342 (1938).

Agency may exist when owner keeps automobile as "family car," for convenience and use of family members, and owner may in such case be liable for member's negligence, who is thus considered as driving the car "upon the business of the owner." Samples v. Shaw, 47 Ga. App. 337, 170 S.E. 389 (1933).

When one furnishes an automobile to members of one's family for pleasure or convenience, etc., one is liable for injuries inflicted by the machine while the machine is being negligently operated by a member of the family for a purpose for which the machine was furnished, on the theory that the furnishing and using of the car for such purposes is the business of the husband and the one operating the car is the agent or servant of the owner in the course of the owner's business. Durden v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 (1946).

Liability attaches to the owner of an automobile who furnishes the automobile for the pleasure, comfort, or convenience of the members of the owner's family, when one of the latter while driving the automobile commits a tort upon another, on the theory that, when the owner makes it the owner's business so to do, a member of the family operating the vehicle is doing so within the scope of the owner's business, under the law of principal and agent and of master and servant. Studdard v. Turner, 91 Ga. App. 318, 85 S.E.2d 537 (1954).

Under family purpose doctrine, agency must be proved as in other cases, except when law presumes agency. Durden v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 (1946).

Family car.

- There is no presumption of law that a man with a family furnishes an automobile to his family for pleasure and convenience merely because he owns one. Durden v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 (1946).

Family car rule states that the head of a family who keeps and maintains an automobile for the use, comfort, pleasure and convenience of the family is liable for an injury resulting from the negligence of a member of the family while operating the automobile with the knowledge and consent of the owner, for the comfort or pleasure of the family, and thus in pursuance of the purpose for which the automobile was kept and maintained by the parent. Whitlock v. Michael, 79 Ga. App. 316, 53 S.E.2d 587 (1949).

When it is first established, at least prima facie, that a car is a family purpose car, then the agency of the family member driving is prima facie established, but the premise that a car is a family purpose car may not be shown by assuming that proof of ownership plus a family member's driving is family purpose. Durden v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 (1946).

"Family car doctrine" as applied in Georgia holds that when one furnishes an automobile to members of one's family for pleasure or convenience one is liable for injuries inflicted by the machine while the machine is being negligently operated by a member of the family for a purpose for which the machine was furnished, on the theory that the furnishing and using of the car for such purposes is the business of the one so furnishing the machine and the one operating the machine is the agent or servant of the one so furnishing the machine in the course of the business. Temple v. Chastain, 99 Ga. App. 719, 109 S.E.2d 897 (1959).

Basic elements of family purpose doctrine.

- There are four requirements for the application of the family purpose doctrine: (1) the owner must have given permission to a family member to drive the vehicle; (2) the owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose. Quattlebaum v. Wallace, 156 Ga. App. 519, 275 S.E.2d 104 (1980).

Pleasure, comfort and convenience.

- Member of a family who injures another while using the car for one's own purposes within the scope of the business for which the car is maintained - that is, the pleasure, comfort and convenience of a member of the family - renders the head of the family who furnishes such automobile liable under the doctrine of respondeat superior. Johnson v. Brant, 93 Ga. App. 44, 90 S.E.2d 587 (1955).

Supervision and control.

- Supervision and control required to bring the car's use under the family purpose doctrine is the owner's (or provider's) furnishing of such supervision, control and use of the vehicle for the comfort, pleasure, and convenience of the owner's family, i.e., within the owner's business of family purpose; the ultimate supervision and control an owner exercises as an incident of ownership does not of itself qualify to bring the doctrine into play. McCray v. Hunter, 157 Ga. App. 509, 277 S.E.2d 795 (1981).

In insureds' suit seeking to recover damages in connection with an accident in which a daughter struck the insureds' vehicle while driving a car that was titled in her father's name, there existed genuine issues of material fact with regard to the father's liability in connection with the accident under Georgia's Family Purpose Doctrine, O.C.G.A. § 51-2-2, since the evidence showed that the father exercised authority and control over the car when the father took out the loan to buy the car, the title was in the father's name, the father contributed to the car's operating expenses, and the daughter was not listed as an insured on the policy that covered the car. Harris v. Houston, F. Supp. 2d (M.D. Ga. Sept. 26, 2006).

Defendant's parents were not vicariously liable for alleged negligence in an auto accident case because the family purpose doctrine did not apply as uncontroverted evidence showed that the defendant's parents did not have requisite authority and control over the use of the car as, despite the mother being the co-signor and the insurance policy was in the parents' names, the defendant gave money to the father to make the loan payments and reimbursed insurance premiums, and paid all gasoline and maintenance expenses for the vehicle. Yim v. Carr, 349 Ga. App. 892, 827 S.E.2d 685 (2019), cert. denied, No. S19C1220, 2019 Ga. LEXIS 853 (Ga. 2019).

Relationship is a precondition.

- Appellee's unrefuted evidence shows the absence of a necessary precondition, in that the negligent operator of the vehicle was not a member of the owner's immediate household; this renders the family purpose doctrine inapplicable to impose vicarious liability on the owner of the vehicle. Wingard v. Brinson, 212 Ga. App. 640, 442 S.E.2d 485 (1994).

Family purpose doctrine does not apply. See Willis v. Allen, 188 Ga. App. 390, 373 S.E.2d 79 (1988).

Doctrine applicable although family member uses car for own pleasure.

- Family purpose doctrine imposes liability on the head of the family who supplies the automobile notwithstanding the fact that the automobile is being used at the time of the injury by the member of the family exclusively for the owner's own individual use or pleasure. Clayton v. Long, 147 Ga. App. 645, 249 S.E.2d 622 (1978).

When an unmarried man, who is the head of a family consisting of himself, a widowed mother, and two sisters, one of whom is unmarried, furnishes and maintains an automobile for the use of the members of the family for their pleasure and comfort, and when, while on a particular occasion with the specific authority and consent of the brother, the automobile is being run and operated by the unmarried sister for the comfort and pleasure of herself and her friends, another person is injured and damaged as the proximate result of the negligence of the sister in operating the automobile, the unmarried brother is liable for such injuries. Levy v. Rubin, 181 Ga. 187, 182 S.E. 176, answer conformed to, 52 Ga. App. 212, 183 S.E. 98 (1935).

Car need not be available to all family members.

- If the head of a family makes it his business to furnish a particular automobile for the pleasure and convenience of less than all of the members of his family to the exclusion of others, his liability for the negligent acts of such a favored member while operating the automobile so furnished is not affected by the failure to so furnish this automobile to other members of the family circle. Temple v. Chastain, 99 Ga. App. 719, 109 S.E.2d 897 (1959).

Family purpose doctrine applies equally as well to boats. Stewart v. Stephens, 225 Ga. 185, 166 S.E.2d 890 (1969).

Family purpose doctrine applies not only to driving of automobiles, but to operation of motorboats as well. Quattlebaum v. Wallace, 156 Ga. App. 519, 275 S.E.2d 104 (1980).

Principles of family purpose doctrine have been applied to cases involving aircraft. Kimbell v. DuBose, 139 Ga. App. 224, 228 S.E.2d 205 (1976).

Doctrine not applicable to use of bicycle furnished to minor by parent.

- Father is not liable to a third person for injuries unlawfully and negligently inflicted by his minor son in the use of a bicycle furnished by the father to the son for the purpose of going to and from school. Calhoun v. Pair, 71 Ga. App. 211, 30 S.E.2d 776 (1944).

2. Use by Spouse

Independent actions of spouse.

- Husband is not liable for an independent tort committed by the wife in the operation of an automobile not furnished by him to the wife, and not used in the husband's business, but operated without his consent, command, or participation in any way. Curtis v. Ashworth, 165 Ga. 782, 142 S.E. 111, 59 A.L.R. 1457 (1928).

Authorized use by wife imputable to husband.

- When a person maintained an automobile for use by his family, including his wife, and the wife, with the husband's consent, used the automobile for the purpose of going on a trip, the wife, in taking and operating the car while on the trip, did so as the authorized agent of the husband, and any negligence on her part in the operation of the automobile pursuant to the purpose for which she is using it was imputable to the husband. Petway v. McLeod, 47 Ga. App. 647, 171 S.E. 225 (1933).

Husband responsible for wife's negligence.

- Husband is liable for the negligence of his wife in driving an automobile which is kept and controlled by him and which he furnished her for family purposes or for her pleasure, comfort, and convenience, if she was so using it at the time when the injury sued for occurred. Hexter v. Burgess, 52 Ga. App. 819, 184 S.E. 769 (1936).

Carpooling.

- Under the family purpose car doctrine, when the owner of an automobile furnishes a car to members of the owner's family, for the convenience of the family, the owner is liable for an injury caused by the negligent operation of the automobile by the owner's wife in carrying their child to and from school and the fact that the wife was transporting in the car other children to and from this school building would not of itself render this doctrine inapplicable. Doss v. Miller, 87 Ga. App. 230, 73 S.E.2d 349 (1952).

3. Use by Child

Automobile for pleasure and comfort.

- Whne a father provides an automobile for the purpose of furnishing his family with pleasure and comfort, and a member of his family uses such automobile for that purpose, the use of the automobile therefore is within the scope of the father's business. Wolfson v. Rainey, 51 Ga. App. 493, 180 S.E. 913 (1935).

When an automobile is placed in the hands of the automobile's family by a father, for the family's pleasure, comfort, and entertainment, justice requires that the owner should be responsible for its negligent operation, because only by doing so, as a general rule, can substantial justice be attained. Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167, answer conformed to, 52 Ga. App. 262, 183 S.E. 98 (1935).

Mother, the owner, is liable for minor son's negligent operation of an automobile maintained for the comfort and pleasure of the family, when the minor son resides with the family and drives the automobile for his own pleasure with the expressed or implied permission of the mother. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937).

Authorized use.

- If a father or mother, owning an automobile, and keeping it to be used for the comfort and pleasure of the family, should authorize a son to drive the automobile for the comfort or pleasure of the family, this would make the owner liable for the negligence of the son operating the machine for such purpose. Grahl v. McMath, 59 Ga. App. 247, 200 S.E. 342 (1938).

Controlling test under this section is not whether the child is operating an automobile or a boat, but whether the child is using the car or boat for a purpose for which the parent provided it, with the permission of the parent, express or implied. Stewart v. Stephens, 225 Ga. 185, 166 S.E.2d 890 (1969).

Basic principle.

- Family car doctrine is based squarely on the relation of master and servant or principal and agent, and holds that a child may occupy the position of a servant or agent of the child's parent, and for the child's acts, and as such, the parent may be liable under the general principles governing the relation of master and servant, or principal and agent. Whitlock v. Michael, 79 Ga. App. 316, 53 S.E.2d 587 (1949).

Father not obligated to provide automobile.

- Father is under no legal obligation to furnish an automobile for the comfort and pleasure of his child, whether minor or adult; and if he does so, it is a voluntary act on his part, and in every such case the question in determining liability under the family car doctrine is whether the father, or other parent has expressly or impliedly made the furnishing of an automobile for such purpose a part of his business, so that one operating the vehicle for that purpose with his consent, express or implied, may be considered as his agent or servant. Whitlock v. Michael, 79 Ga. App. 316, 53 S.E.2d 587 (1949).

Authority and control created agency.

- When the parents had the right to exercise authority and control over the son's use of a family van, an agency relationship existed rendering the parents vicariously liable for the son's negligence; thus, partial summary judgment was properly granted. Gaither v. Sanders, 259 Ga. App. 810, 578 S.E.2d 512 (2003).

Relationship does not make agency.

- When the mother lent her car to her son as she might to another who was not a member of her family, and not as a vehicle which she had provided in her business of extending pleasure and comfort to her family, in his use of the car, the son was not the mother's agent in pursuit of her family purpose business; the mere fact that she owned the car does not create an agency in her son's use of it, nor does her mere consent to him to use the car, nor, moreover, does such consent plus the fact that he was a member of her family create such an agency for family purpose and business. McCray v. Hunter, 157 Ga. App. 509, 277 S.E.2d 795 (1981).

Requirements for family purpose met.

- When the mother purchased the car with a check drawn on her account and retained title in her name, when the car was insured as belonging to her on a policy covering two cars, when the money to pay for the car was deposited to her checking account from her son's savings account and he reimbursed her for his share of the insurance premiums, when she had never driven or ridden in the car and contributed no money for its upkeep, and when she had deprived her son of use of the car as an incentive to do better in school, granting of summary judgment on the basis that the car was not being used as a family purpose vehicle was in error. Tolbert v. Murrell, 253 Ga. 566, 322 S.E.2d 487 (1984).

Trial court erred in granting summary judgment for a mother on an injured party's claim under the family purpose doctrine as: (1) the mother was the owner of the car and provided it to the son for his pleasure; (2) the son was in the car at the time of the collision; (3) the fact that the son was on his way to a friend's house at the time and was an adult did not preclude application of the family purpose doctrine; and (4) the evidence was in conflict as to the mother's right to exercise authority and control over the car as the son was under her general supervision and was expected to follow her rules while living at home and the son testified that his mother would have restricted his use of the car if she had known he was drinking or using drugs prior to the collision. Danforth v. Bulman, 276 Ga. App. 531, 623 S.E.2d 732 (2005).

Mother was not vicariously liable under the family purpose doctrine for an incident involving her minor son's car; although insurance was in the names of the mother and the son's stepfather and title was in the stepfather's name, the son purchased the car with his own funds and paid for its upkeep, maintenance, and insurance, and even if the stepfather were liable because he facilitated the purchase by holding title, the stepfather's liability would not be imputed to the mother. Dashtpeyma v. Wade, 285 Ga. App. 361, 646 S.E.2d 335 (2007).

Requirements for family purpose not met.

- When the evidence conclusively establishes that a vehicle was owned and operated by an individual acting in the individual's own capacity as the donee of an absolute gift, without any necessity for the consent of the individual's father, expressed or implied, and without the exercise of any authority or control by the father, these facts fail to disclose that the use was intended for a family purpose in any way or any basis for an action against the father under the family-purpose doctrine for damages and injuries arising from its negligent operation. Keith v. Carter, 172 Ga. App. 588, 323 S.E.2d 886 (1984).

Doctrine applies when authority exists although family member exceeds authority.

- Son living with his mother as a member of the family, having general authority to drive the family car for pleasure and convenience, is acting within the scope of his authority in so doing, though he violates the conditions of that grant of authority. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937).

When an automobile is furnished by a father as a family purpose automobile, the mere fact that one of the children used the automobile for such purpose contrary to express instructions from the father not to use the automobile in his absence does not necessarily destroy the relationship between the parties which is that of master and servant, and does not necessarily render the act of the son in operating the automobile for the family purpose, although contrary to the express orders of the father, an act of the son alone and not his act as a servant of the father. Battle v. Kilcrease, 54 Ga. App. 808, 189 S.E. 573 (1936).

Doctrine not applicable when family member not authorized to use vehicle.

- Stepdaughter who does not live in the home of and is not a member of the family or household of her stepfather, but who lives with her own father, should not be considered as a member of her stepfather's family, to the extent of holding him liable when he keeps and maintains an automobile for the comfort, pleasure, and business of his family, and his stepdaughter, while not living with him, without his knowledge or consent, takes the automobile and uses it for her exclusive comfort and pleasure, and not connected in any way with the business or pleasure of the family of her stepfather, and while so using it has a wreck, inflicting certain injuries upon another. Wolfson v. Rainey, 51 Ga. App. 493, 180 S.E. 913 (1935).

When the undisputed evidence showed that the father had expressly denied to his 15-year-old son any use of his car on the occasion in question, the law will not presume or assume an implied assent, especially when it was also denied that such car was ever so used as to make applicable to it the family car doctrine. Grahl v. McMath, 59 Ga. App. 247, 200 S.E. 342 (1938).

Owner cannot be found liable on the basis of the family purpose doctrine when the minor with permission to use the car was not driving or riding in the car and was not authorized by the owner to permit others to drive the car. Rucker v. Frye, 151 Ga. App. 415, 260 S.E.2d 373 (1979).

Trial court erred in finding the family purpose doctrine applicable when the uncontroverted evidence indicates that only the appellant was authorized to operate the motorboat, and his stepson had in the past only been permitted to drive the boat with the appellant present and presumably in control, when never before the date of the accident had the appellant ever permitted another person to control the operation of the boat, and when appellant had neither given his stepson permission to drive the boat on the day in question nor to allow anyone else other than whom he designated to drive the boat. Quattlebaum v. Wallace, 156 Ga. App. 519, 275 S.E.2d 104 (1980).

Denial of authorized use must be explicit and consistent.

- If an automobile is available and no positive steps have been taken to prohibit the use of the automobile by the family member, then the owner is liable even though on one occasion the child has been instructed that the child may not use the automobile. Clayton v. Long, 147 Ga. App. 645, 249 S.E.2d 622 (1978).

Not applicable to mere "loan" of vehicle to nondependent adult child.

- If the father was the sole owner of the car and the son was over 21 years of age and was not a member of the family within the meaning of the family car doctrine, a mere loan of the car by the father to the son was in principle the same as if he had loaned it to a friend to go on a mission solely for the benefit of the friend and would in fact make the son a mere bailee and if the son's chauffeur or driver injured someone on the trip, the father would not be liable. Raley v. Hatcher, 61 Ga. App. 846, 7 S.E.2d 777 (1940).

"Loan" to minor child.

- It is essential to a "family purpose rule" case, that it be established that the vehicle furnished for the members of the family to use and is being so used at the time, for a mere lending of an automobile to a minor child to use for the child's own purposes is not sufficient. Studdard v. Turner, 91 Ga. App. 318, 85 S.E.2d 537 (1954).

Doctrine inapplicable to child acting as agent for another entity.

- Family purpose doctrine does not extend to hold a parent liable for the acts of a child performed in the child's capacity as agent or employee for another person or entity. Shank v. Phillips, 193 Ga. App. 393, 388 S.E.2d 5 (1989).

4. Use by Other

Doctrine not inapplicable merely because car also used in business.

- Fact that automobile may have been kept and maintained primarily for business use by the owner does not remove the automobile from the operation of the "family car doctrine" when the automobile is also regularly furnished to members of the owner's family for their pleasure and convenience. Temple v. Chastain, 99 Ga. App. 719, 109 S.E.2d 897 (1959).

Corporation holding title to vehicle.

- When the president of a corporation had the custody of an automobile which was used exclusively by the president and the president's spouse, the fact that the title to the car was in the corporation would not absolve the president from liability for the spouse's negligence under the family car doctrine. Hexter v. Burgess, 52 Ga. App. 819, 184 S.E. 769 (1936).

Corporate title holder not liable under family purpose doctrine.

- When a wholly owned family corporation furnishes a vehicle owned by the corporation to the corporation's president for the president's personal and business use, and he permits the unrestricted use of the vehicle by members of his family with the knowledge and consent of corporate officers and stockholders, and, while the vehicle is so used, a third person is injured because of negligence, the corporation is not negligent under the family-purpose car doctrine. McIntosh v. Neal-Blun Co., 123 Ga. App. 836, 182 S.E.2d 696 (1971).

Use of vehicle by nondependent adult child.

- Under the "family purpose doctrine," a parent is liable for damages caused by an adult child living with the parent when such child causes the damages through the negligent operation of the family automobile. Kennedy v. Manis, 46 Ga. App. 808, 169 S.E. 319 (1933).

When a father keeps and maintains an automobile to be used for the comfort and pleasure of his family, including his wife and minor children, and when he permits a nondependent, self-supporting adult son to reside in his home without charge, whom he also as a matter of custom voluntarily permits to use and drive the automobile for the comfort and pleasure of the son upon the same footing as the father's wife and minor children, the father can be held liable for a personal injury to a third person proximately caused by the negligent operation of the automobile by such son, when at the time of the injury the son was driving the vehicle for his own recreation and pleasure by the express or implied permission of the father. Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167, answer conformed to, 52 Ga. App. 262, 183 S.E. 98 (1935); Belch v. Sprayberry, 97 Ga. App. 47, 101 S.E.2d 870 (1958).

Family car rule has been extended to liability for damages caused by an adult son or daughter living with the parent as a member of the family, and to a "nondependent, self-supporting adult son" who resided in the home without charge and by custom was voluntarily permitted to drive the car for his own comfort and pleasure upon the same footing as the father's wife and minor children. Whitlock v. Michael, 79 Ga. App. 316, 53 S.E.2d 587 (1949).

Since a child, whether a minor or an adult, may occupy the position of a servant or agent of his parent, for his negligent acts as such the parent may be liable under the family car doctrine thus whether the child is an adult or a minor is immaterial, except as a circumstance to be considered in determining whether the relation of master and servant really existed, and by the same process of reasoning it is likewise immaterial, to the same extent, whether an adult child living in the house with the parent was single or married. Whitlock v. Michael, 79 Ga. App. 316, 53 S.E.2d 587 (1949).

If the driver of an automobile involved in an accident is a member of the owner's family and otherwise within the purview of the "family purpose rule" it does not matter that he is a nondependent, self-supporting son, or that the son lives a part of the time away from home. Studdard v. Turner, 91 Ga. App. 318, 85 S.E.2d 537 (1954).

Owner may be liable when third party operates vehicle as agent of family member.

- When a married woman owns as her separate property an automobile which she keeps for the comfort, pleasure, and convenience of the members of her family including her husband, who had general authority from the wife not only to ride in but to direct the operation of the car by others for his own pleasure, and when, without the knowledge or the express consent of the wife, she not being present, the husband procures an adult person, not a member of her family, to drive the car under the direction, control, and supervision of the husband, the wife, under the "family purpose doctrine," is liable in damages for personal injuries to a third person caused by the negligence of the driver in operating the car on a public highway. Golden v. Medford, 189 Ga. 614, 7 S.E.2d 236 (1940).

Member of a family for whose pleasure, comfort, and convenience an automobile is furnished may use such automobile for his pleasure and convenience, and may under certain circumstances, in so using it, obtain the services of another person to operate it for him, he being present and the car being under his direction or control and the use to which it is put being the accomplishment of a mission of his own, and the owner who furnishes such automobile may still be liable under the doctrine of respondeat superior. Johnson v. Brant, 93 Ga. App. 44, 90 S.E.2d 587 (1955).

No liability if family member "lends" car.

- Fact that the son had a right to use car belonging to his father as he pleased for his own purposes was not sufficient to make his father, the owner, liable, since the son lent the car to another under circumstances which, had the father himself lent the car to such other he would not be liable. Johnson v. Brant, 93 Ga. App. 44, 90 S.E.2d 587 (1955).

No liability if third party had no authority from owner or family member.

- When no negligence is alleged against the owner, or a member of the owner's family, and when the operator of the vehicle is not a servant or agent of the owner nor a servant or agent of a member of the owner's family who would have a right, under the family car doctrine, to employ the services of another to drive him while he was using the car for the purpose for which such family car was maintained, the owner is not liable. Johnson v. Brant, 93 Ga. App. 44, 90 S.E.2d 587 (1955).

5. Procedure

Whether doctrine applicable is question of fact.

- Genuine issues of material fact, precluding summary judgment, existed as to whether the family purpose doctrine was applicable when, despite multiple residences and a subsequent divorce, there was evidence that, at the time of the accident, the owner's family continued to function as a cohesive social entity, and that one had the right to exercise, and did in fact exercise, authority and control over the use of the automobile. Smith v. Sherman, 197 Ga. App. 183, 397 S.E.2d 617 (1990).

Negligence must be determined.

- Family car doctrine renders a parent or guardian who keeps an automobile for the comfort and pleasure of one's family liable for the negligence of any member of the family driving the vehicle with the parent's consent, either express or implied, as the agent of the owner. However, the jury must first determine the family members' negligence before applying the family car doctrine. Clayton v. Long, 147 Ga. App. 645, 249 S.E.2d 622 (1978).

No need to join family member as party defendant.

- Under Georgia law when the head of the family is sought to be held liable for some wrong committed by a member of one's family within the scope of the family purpose doctrine, that member of the family need not necessarily be joined as a party defendant. Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981).

Jury instructions.

- Trial judge erred in charging the jury in substance that the defendant would be liable if the negligence of the defendant's child caused injury or damage, without in this same connection instructing them that it must appear from the evidence that the defendant furnished the automobile for the use, pleasure, comfort, and convenience of the defendant's family, and that it was, at the time of the collision, being operated by the defendant's child within the scope of the purpose for which it was furnished. Studdard v. Turner, 91 Ga. App. 318, 85 S.E.2d 537 (1954).

It was question for jury to say whether car kept by mother was a family purpose car, within meaning of "family car rule," so as to subject her to liability for damages from its negligent operation by her self-supporting, adult married daughter living in the home with her. Whitlock v. Michael, 79 Ga. App. 316, 53 S.E.2d 587 (1949).

Use of car one time by wife and husband's leaving key at home is insufficient evidence to establish fact that car was a family purpose car. Durden v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 (1946).

If evidence fails to show that automobile was furnished by husband as "family purpose" car, verdict against husband is unauthorized. Durden v. Maddox, 73 Ga. App. 491, 37 S.E.2d 219 (1946).

Torts of Servant

1. Definitions and General Scope

Common law applies.

- Common law rule as to liability or nonliability of the master for acts of a substitute employee engaged without authority of the master has been followed: every person is liable for torts committed by that person's servant, by that person's command or in the prosecution and within the scope of that person's business, whether the same be by negligence or voluntary. Carter v. Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953).

Former Code 1933, §§ 4-312 and 105-108 (see now O.C.G.A. §§ 10-6-61 and51-2-2), being in pari materia, must be construed together. Planters Cotton Oil Co. v. Baker, 181 Ga. 161, 181 S.E. 671 (1935); King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

While the word "business" in this section is commonly employed in connection with an occupation for livelihood or profit, it is not limited to such pursuits. Butler v. Moore, 125 Ga. App. 435, 188 S.E.2d 142 (1972).

Corporation is a "person" in the meaning of this section. Louisville & N.R.R. v. Hudson, 10 Ga. App. 169, 73 S.E. 30 (1911).

This section applies as well when the master is a corporation as when the master is a private individual. Southern Grocery Stores, Inc. v. Herring, 63 Ga. App. 267, 11 S.E.2d 57 (1940).

A corporation, under the law, is a "person," and the terms of this section apply to corporations as well as to natural persons. Digsby v. Carroll Baking Co., 76 Ga. App. 656, 47 S.E.2d 203 (1948).

Word "servant" means an employee as well as a domestic servant. Toole Furn. Co. v. Ellis, 5 Ga. App. 271, 63 S.E. 55 (1908); Andrews v. Norvell, 65 Ga. App. 241, 15 S.E.2d 808 (1941); Du Pree v. Babcock, 100 Ga. App. 767, 112 S.E.2d 415 (1959).

Word "voluntary" in this section will cover any or all motives or purposes of the wrongdoer, acting in the scope of the wrongdoer's employment, which are not covered by acts of negligence. Frazier v. Southern Ry., 200 Ga. 590, 37 S.E.2d 774 (1946); Pope v. Seaboard Air Line R.R., 88 Ga. App. 557, 77 S.E.2d 55 (1953); McCranie v. Langdale Ford Co., 176 Ga. App. 281, 335 S.E.2d 667 (1985).

In a medical malpractice action, the trial court erred by granting a new trial as to apportionment because by failing to give the mandatory notice required by O.C.G.A. § 51-12-33(b), the defendants waived the defendants' right to apportion damages on vicarious liability and as to a non-party. Trabue v. Atlanta Women's Specialists, LLC, 349 Ga. App. 223, 825 S.E.2d 586 (2019).

2. Basis of Master's Liability

Master liable for torts of servant committed within scope of business.

- If a tort is committed by a servant in the prosecution of the master's business, that is, if the servant is at the time engaged in serving the master, the latter will be liable. Savannah Elec. Co. v. Wheeler, 128 Ga. 550, 58 S.E. 38 (1907); Atlanta Hub Co. v. Jones, 47 Ga. App. 778, 171 S.E. 470 (1933).

When a servant does an act in the execution of a lawful authority given the servant by the servant's master and for the purpose of performing what the master has directed, the master will be liable for an injury thereby inflicted on another, whether the wrong be occasioned by negligence or by a wanton and reckless purpose to accomplish the master's business in an unlawful manner. Personal Fin. Co. v. Whiting, 48 Ga. App. 154, 172 S.E. 111 (1933); Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).

It is not essential to the liability of a master for the willful and intentional tort of a servant that the servant shall have acted at the command of the master or with the master's consent; the master is liable if a tort is committed by the servant in the course of the servant's employment while the servant is acting within the scope of the servant's authority and in the prosecution of the master's business. Ford v. Mitchell, 50 Ga. App. 617, 179 S.E. 215 (1935).

Test of the master's responsibility for the acts of the master's servant is, not whether such act is done in accordance with the instruction of the master to the servant, but whether it is done in the prosecution and in the scope of the master's business. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937); Crane Auto Parts, Stewart Ave. Branch, Inc. v. Patterson, 90 Ga. App. 257, 82 S.E.2d 666 (1954).

Master is responsible for the tortious acts of the master's servant, done in the master's business and within the scope of the servant's employment, although the master does not authorize or know of the particular act, or even if the master disapproves or forbids. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937); Crane Auto Parts, Stewart Ave. Branch, Inc. v. Patterson, 90 Ga. App. 257, 82 S.E.2d 666 (1954).

Rule is that for all acts done by a servant in obedience to the express orders or directions of a master, or in the execution of the master's business, within the scope of the servant's employment, and for acts in any sense warranted by the express or implied authority conferred upon the servant considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible. Dawson Motor Co. v. Petty, 53 Ga. App. 746, 186 S.E. 877 (1936).

Test is not that the act of the servant was done during the existence of the employment, that is to say, during the time covered by the employment, but whether it was done in the prosecution of the master's business; whether the servant was at that time engaged in serving the servant's master. Jump v. Anderson, 58 Ga. App. 126, 197 S.E. 644 (1938); Cooley v. Tate, 87 Ga. App. 1, 73 S.E.2d 72 (1952); Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977), aff'd, 587 F.2d 279 (5th Cir. 1979).

Master is liable for a tort committed by the master's servant in the prosecution and within the master's business, whether by negligence or willfully. Brown v. Union Bus Co., 61 Ga. App. 496, 6 S.E.2d 388 (1939).

In order for the master to be liable for torts committed by the master's servant the tort-feasor must have either acted by command of the master or the tortious act must have been perpetrated in the prosecution of and within the scope of the master's business. There is no liability on the part of the master arising from the mere relationship of master and servant. Falls v. Jacobs Pharmacy Co., 71 Ga. App. 547, 31 S.E.2d 426 (1944); Taff v. Life Ins. Co., 77 Ga. App. 836, 50 S.E.2d 154 (1948); Parry v. Davison-Paxon Co., 87 Ga. App. 51, 73 S.E.2d 59 (1952); Jones v. Reserve Ins. Co., 149 Ga. App. 176, 253 S.E.2d 849 (1979).

To render a master liable for the servant's tort, the servant must be acting both in the prosecution and within the scope of the master's business. Ruff v. Gazaway, 82 Ga. App. 151, 60 S.E.2d 467 (1950).

For injuries caused by the negligence of an employee not directed or ratified by the employer, the employee is liable because the employee committed the act which caused the injury, while the employer is liable, not as if the act was done by oneself, but because of the doctrine of respondeat superior, the rule of law which holds the master responsible for the negligent act of the master's servant committed while the servant is acting within the general scope of the servant's employment and engaged in the master's business. Stapleton v. Stapleton, 85 Ga. App. 728, 70 S.E.2d 156 (1952).

In order for the master to be liable for torts committed by the servant, the tort-feasor must either have acted by command of the master or the tortious act must have been perpetrated in the prosecution of and within the scope of the master's business. Parry v. Davison-Paxon Co., 87 Ga. App. 51, 73 S.E.2d 59 (1952); McCranie v. Langdale Ford Co., 176 Ga. App. 281, 335 S.E.2d 667 (1985).

In order for the master to be liable the tortious conduct of the servant must have been by the command of the master or in the prosecution and within the scope of the master's business; it must appear that the negligence of the defendant's servant arose in a transaction in the doing of which the servant was actually engaged in the performance of the master's business. Cooley v. Tate, 87 Ga. App. 1, 73 S.E.2d 72 (1952).

In determining the liability of the master for the negligent or willful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether the act was done within the scope of the actual transaction of the master's business for accomplishing the ends of the servant's employment. Jones v. Reserve Ins. Co., 149 Ga. App. 176, 253 S.E.2d 849 (1979); Sexton Bros. Tire Co. v. Southern Burglar Alarm Co., 153 Ga. App. 413, 265 S.E.2d 335 (1980).

Master will be liable for injury to third persons caused by a servant's negligent act done in furtherance of the master's business. Harden v. United States, 485 F. Supp. 380 (S.D. Ga. 1980), aff'd, 688 F.2d 1025 (5th Cir. 1982).

To hold a master liable for a tort committed by the servant, it must appear that at the time of the injury the servant was engaged in the master's business and not upon some private and personal matter of the servant's own; that is, the injury must have been inflicted in the course of the servant's employment. May v. Phillips, 157 Ga. App. 630, 278 S.E.2d 172 (1981).

Trial court committed no error in concluding that the amended complaint sufficiently pled allegations of vicarious liability because the defendants failed to demonstrate that the plaintiffs could not possibly introduce evidence within the framework of the amended complaint sufficient to hold the defendants vicariously liable for the allegedly tortious actions of their employees associated with the inspection of the company's books and records. TMX Finance, LLC v. Goldsmith, 352 Ga. App. 190, 833 S.E.2d 317 (2019), cert. denied, No. S20C0427, 2020 Ga. LEXIS 405 (Ga. 2020); cert. denied, No. S20C0415, 2020 Ga. LEXIS 414 (Ga. 2020).

Master acquiesces in action of servant.

- To neglect to exercise authority to forbid a thing is, in legal contemplation, to permit it. Gorman v. Campbell, 14 Ga. 137 (1853).

When a master (principal) has knowledge that the servant (agent) pursues a given course of conduct and the master takes no steps to prevent such conduct, the master is liable for the consequences. Allen & Bean, Inc. v. American Bankers Ins. Co., 153 Ga. App. 617, 266 S.E.2d 295 (1980).

True test of liability is not whether the tort was committed by reason of anger, malice, or ill will, but whether or not the tort was committed in the prosecution and within the scope of the master's business. Parry v. Davison-Paxon Co., 87 Ga. App. 51, 73 S.E.2d 59 (1952); Pope v. Seaboard Air Line R.R., 88 Ga. App. 557, 77 S.E.2d 55 (1953); McCranie v. Langdale Ford Co., 176 Ga. App. 281, 335 S.E.2d 667 (1985).

True test of vicarious liability is whether or not the tort is committed in the prosecution and within the scope of the master's business. Fountain v. World Fin. Corp., 144 Ga. App. 10, 240 S.E.2d 558 (1977).

Relationship required.

- To impose liability under respondeat superior, some relationship must exist between the principal and agent or employer and employee, and when the unrebutted evidence showed that the defendant-landowner had no such relationship with injured employee and did not authorize the employee to act on his behalf, the necessary element for the imposition of liability was absent. Gaskins v. Gaona, 209 Ga. App. 322, 433 S.E.2d 408 (1993).

Master not liable if servant not liable.

- When a lawsuit is brought against a master and a servant based upon a cause of action attributable to the master under the doctrine of respondeat superior, a verdict finding only against the master and releasing the servant may be set aside when the pleadings and the evidence fail to allege or show any independent tort of the master which could have supported the verdict. Colonial Stores, Inc. v. Fishel, 160 Ga. App. 739, 288 S.E.2d 21 (1981).

Mere fact that servant's negligent act is expressly forbidden by master does not absolve master of vicarious liability, the test being whether the servant's negligent act is within the class of acts that the servant is authorized to perform, and if the act is within the class, the master is bound, although the servant is forbidden to perform the particular act. Harden v. United States, 485 F. Supp. 380 (S.D. Ga. 1980), aff'd, 688 F.2d 1025 (5th Cir. 1982).

Servant forbidden to perform act.

- When an employee is acting within the class of service the employee has authority to perform, the master is bound even though the servant is forbidden to perform the particular act. Southern Airways Co. v. Sears, Roebuck & Co., 106 Ga. App. 615, 127 S.E.2d 708 (1962).

Anger or malice in commission of tort by servant is not defense for master. Frazier v. Southern Ry., 200 Ga. 590, 37 S.E.2d 774 (1946).

Allowing a master to defend an action for the servant's tort by showing that at the time of the commission of the tort, when the servant was within the course of employment, the servant acted through anger, malice, or ill will, would defeat the purpose of this section, which makes the master liable for voluntary torts. Frazier v. Southern Ry., 200 Ga. 590, 37 S.E.2d 774 (1946).

Employer is not liable for misconduct of employee without the scope of employment. Great Atl. & Pac. Tea Co. v. Cox, 51 Ga. App. 880, 181 S.E. 788 (1935).

Employer is not liable for acts of his employee in no way connected with or in furtherance of employer's business. Lewis v. Millwood, 112 Ga. App. 459, 145 S.E.2d 602 (1965).

When a 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 his act to execute it, does an injury to another not within the scope of his employment, the master is not liable. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).

When there is no showing that the servant was acting within the scope of the employment or in the prosecution of the employer's business, or that the nature of the employee's service was such that the employee's authority to perform the act on behalf of the employer could be legitimately inferred, there is no liability on the part of the employer for the conduct of the employee. Rivers v. Mathews, 96 Ga. App. 546, 100 S.E.2d 637 (1957).

Benefit to master not required.

- Liability of an employer for the negligence of the servant is predicated on the basis that the servant, while in the course and scope of the employment, causes the injury, regardless of whether the master benefited from the act or not. Carter v. Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953).

Master is not liable when act of servant is done purely from personal spite or malice and has no connection with the business about which the servant is employed. Estridge v. Hanna, 55 Ga. App. 159, 189 S.E. 364 (1936).

Master not liable when servant steps aside from master's business.

- If a servant steps aside from the master's business for however short a time to do an act entirely disconnected from the master's business, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not. Friedman v. Martin, 43 Ga. App. 677, 160 S.E. 126 (1931); Selman v. Wallace, 45 Ga. App. 688, 165 S.E. 851 (1932); Dawson Chevrolet Co. v. Ford, 47 Ga. App. 312, 170 S.E. 306 (1933); Atlanta Hub Co. v. Jones, 47 Ga. App. 778, 171 S.E. 470 (1933); Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 193 S.E. 347 (1937); Jump v. Anderson, 58 Ga. App. 126, 197 S.E. 644 (1938); Mulkey v. Griffen Constr. Co., 58 Ga. App. 808, 200 S.E. 163 (1938); Broome v. Primrose Tapestry Mills, 59 Ga. App. 70, 200 S.E. 506 (1938); Southern Grocery Stores, Inc. v. Herring, 63 Ga. App. 267, 11 S.E.2d 57 (1940); Falls v. Jacobs Pharmacy Co., 71 Ga. App. 547, 31 S.E.2d 426 (1944); Frazier v. Southern Ry., 200 Ga. 590, 37 S.E.2d 774 (1946); Parry v. Davison-Paxon Co., 87 Ga. App. 51, 73 S.E.2d 59 (1952); Jones v. Reserve Ins. Co., 149 Ga. App. 176, 253 S.E.2d 849 (1979).

For a tort committed by the servant entirely disconnected from the service or business of the master, the latter is not responsible under the doctrine of respondeat superior, although it may occur during the general term of the servant's employment. American Sec. Co. v. Cook, 49 Ga. App. 723, 176 S.E. 798 (1934); Southern Grocery Stores, Inc. v. Herring, 63 Ga. App. 267, 11 S.E.2d 57 (1940); May v. Phillips, 157 Ga. App. 630, 278 S.E.2d 172 (1981).

Servant's deviation for personal business slight.

- If a servant, while engaged in the business of the master, makes a slight deviation for ends of the servant's own, the master remains liable when the act was so closely connected with the master's affairs that, though the servant may derive some benefit from it, it may nevertheless fairly be regarded as within the course of the servant's employment. Selman v. Wallace, 45 Ga. App. 688, 165 S.E. 851 (1932); Jump v. Anderson, 58 Ga. App. 126, 197 S.E. 644 (1938).

Servant's personal motive merely additional to master's business.

- When there has been a mingling of personal motive or purpose of the servant with the doing of the servant's work for the servant's employer, the presence of such a motive or purpose in the servant's mind does not affect the master's liability since that which the servant does is in the line of the servant's duty and in the prosecution of the master's work. Jump v. Anderson, 58 Ga. App. 126, 197 S.E. 644 (1938).

When a servant makes a deviation which results in injury to person or property, the master is liable unless the deviation was for purposes entirely personal to the servant. When the latter is engaged in the business of the employer it is immaterial that the servant join with this some private purposes of the servant's own. Johnson v. Franklin, 312 F. Supp. 310 (S.D. Ga. 1970).

Master's liability reattaches when servant resumes duties.

- Although a servant may have made a temporary departure from the service of the master, and in so doing may for the time have severed the relationship of master and servant, yet, when the object of the servant's departure has been accomplished and the servant has resumed the discharge of the servant's duties to the master, the responsibility of the master for the acts of the servant reattaches. Atlanta Laundries, Inc. v. Goldberg, 71 Ga. App. 130, 30 S.E.2d 349 (1944).

Employer's liability for the employee's torts is suspended during the employee's "deviation" from the employee's duties; upon the employee's resumption of the employee's work, the employer's liability reattaches. Bridger v. IBM Corp., 480 F.2d 566 (5th Cir. 1973).

Suit by servant's wife against master for servant's negligence not barred.

- Wife who sustains personal injuries as the result of the negligence of the defendant's agent acting within the scope of his employment may sue the employer directly under the doctrine of respondeat superior, regardless of the fact that the defendant's agent who committed the tortious act is her husband, against whom she would be precluded from recovery by virtue of the marital relationship. Garnto v. Henson, 88 Ga. App. 320, 76 S.E.2d 636 (1953).

If, when the tortious act of the servant is the act of the master, the master is liable proximately even though the wife may not recover from the husband, the servant. She is merely denied a remedy; this does not destroy the right of action against the master. Bradley v. Tenneco Oil Co., 146 Ga. App. 161, 245 S.E.2d 862 (1978).

Master may remain liable for negligent selection or retention of servant.

- When a servant departs from the prosecution of the servant's business and commits a tort while acting without the scope of the servant's authority, the person employing the servant may still be liable if the person failed to exercise due care in the selection of the servant; the same principle would be applicable if the employer retains the servant after knowledge that the servant is of such temper and disposition that the servant is likely to injure others who are rightfully on the premises. Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 193 S.E. 347 (1937); Pope v. Seaboard Air Line R.R., 88 Ga. App. 557, 77 S.E.2d 55 (1953).

Employer's liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee's violent and criminal propensities. Odom v. Hubeny, Inc., 179 Ga. App. 250, 345 S.E.2d 886 (1986).

Master's liability to injured party's employer.

- O.C.G.A. § 51-2-2 accords an injured party a cause of action against the employer of a third-party tortfeasor, but does not extend that right to the injured party's employer. Unique Paint Co. v. Wm. F. Newman Co., 201 Ga. App. 463, 411 S.E.2d 352 (1991).

3. Scope of Employment

Determining scope of employment.

- Expressions "in the scope of his business" or "in the scope of his employment," or similar words, have sometimes been given too narrow a meaning. A master rarely commands a servant to be negligent, or employs the servant with the expectation that the servant will commit a negligent or willful tort: but if the act is done in the prosecution of the master's business - that is, if the servant is at the time engaged in serving the master - the latter will be liable. American Sec. Co. v. Cook, 49 Ga. App. 723, 176 S.E. 798 (1934); Jump v. Anderson, 58 Ga. App. 126, 197 S.E. 644 (1938); Brown v. Union Bus Co., 61 Ga. App. 496, 6 S.E.2d 388 (1939); Southern Grocery Stores, Inc. v. Herring, 63 Ga. App. 267, 11 S.E.2d 57 (1940).

If the act done by the employee is done in the prosecution of the business of the employer, that is, if the employee is at the time of the commission of the wrongful act engaged in serving the employer, the wrongful act is done "in the prosecution and within the scope of" the employer's business. Andrews v. Norvell, 65 Ga. App. 241, 15 S.E.2d 808 (1941); DuPree v. Babcock, 100 Ga. App. 767, 112 S.E.2d 415 (1959).

If a fellow servant, in committing an act which resulted in injury to the plaintiff, was seeking to further the master's business, such an act would be within the scope of employment if it was not an extreme deviation from the employee's normal conduct. Such deviation from the normal course of conduct is not the same as deviation from the scope of employment and it must occur within the scope of employment. Atlantic Coast Line R.R. v. Heyward, 82 Ga. App. 337, 60 S.E.2d 641 (1950).

True test as to the scope of employment is whether the purpose of the fellow servant in performing the act is to further the master's business, rather than whether or not it deviated in some degree from the servant's normal conduct. Atlantic Coast Line R.R. v. Heyward, 82 Ga. App. 337, 60 S.E.2d 641 (1950).

Employee sufficiently rebutted a certification by the U.S. Attorney General under 28 U.S.C. § 2679(d)(1) that an assistant director (AD) acted within the scope of employment when the AD made an allegedly defamatory statement against the employee. Thus, the AD remained a party defendant in the employee's action under O.C.G.A. § 51-2-2. Schiefer v. United States, F.3d (11th Cir. May 29, 2008)(Unpublished).

Misconduct outside scope of employment.

- Boarding school's adult staff member's alleged misconduct of participating in a consensual sexual relationship with a 13-year-old student was held to be considered personal in nature and unrelated to the performance of the staff member's employment duties. Doe v. Village of St. Joseph, Inc., 202 Ga. App. 614, 415 S.E.2d 56 (1992).

Because it was absolutely undisputed that a city police officer was off duty, intoxicated, and not in any way engaged in the officer's law enforcement duties at the time the officer attacked an innocent driver, summary judgment in favor of the city was proper on the driver's claim against the city for respondeat superior. Graham v. City of Duluth, 328 Ga. App. 496, 759 S.E.2d 645 (2014).

If tort of employee is wholly personal to the employee, it is not within scope of the employee's employment, and the employee's employer is not required to anticipate the improbable, nor to take measures to prevent a happening which no reasonable person would have expected. Community Theatres Co. v. Bentley, 88 Ga. App. 303, 76 S.E.2d 632 (1953).

Appellate court erred in reversing the trial court's grant of summary judgment for the hospital after the patient sued the hospital on a respondeat superior theory for the acts of the hospital's employee in rubbing the patient's genitals after surgery when the employee was only authorized to check the groin area for surgical complications, as the hospital could not be liable as a matter of law because the patient could not show one requirement for finding the hospital liable, namely that the employee's purely personal act did anything to further the hospital's business. Piedmont Hosp., Inc. v. Palladino, 276 Ga. 612, 580 S.E.2d 215 (2003).

Disclosure of tax information.

- Defendants were found to be acting within the scope of the defendants' employment when the defendants allegedly disclosed confidential tax returns to third parties in their attempt to collect the plaintiffs' taxes or to collect information for tax related purposes. Retirement Care Assocs. v. U.S./I.R.S., 1 F. Supp. 2d 1472 (N.D. Ga. 1998).

Horseplay with employees to keep employees energized.

- When automobile salesperson was injured while "finger-wrestling" with his supervisor, testimony that the supervisor believed that engaging in occasional horseplay with employees to keep the employees "pumped up" constituted a part of the supervisor's supervisory responsibilities, created a material factual conflict, precluding summary judgment for the employer, on the issue of whether the supervisor's alleged misconduct occurred within the scope of the supervisor's employment. Gaylor v. Jay & Gene's Chrysler-Plymouth-Dodge, Inc., 183 Ga. App. 255, 358 S.E.2d 655 (1987).

Hugging of patron by a bar waitress was done for purely personal motives and her employer was not liable for injuries caused to the patron when the patron fell as the result of the waitress's action. Morrison v. Anderson, 221 Ga. App. 396, 471 S.E.2d 329 (1996).

Employee forging signature on contract.

- Employer was not liable when the act of an employee forging a signature of a purported customer to a company contract was not within the scope of the servant's employment. Wittig v. Spa Lady, Inc., 182 Ga. App. 689, 356 S.E.2d 665 (1987).

Manager was acting within the scope of employment when wrong person arrested.

- Since the undisputed evidence showed that the manager swore out the affidavit for arrest against the defendant for the sole reason that the manager thought the manager was instructed to do so by the manager's employer, the manager was acting within the scope and course of the manager's employment even though the manager had the wrong person arrested. Rent to Own, Inc. v. Bragg, 248 Ga. App. 130, 546 S.E.2d 9 (2001).

Servant leaving work held to be in scope of employment.

- See Fred A. York, Inc. v. Moss, 176 Ga. App. 350, 335 S.E.2d 618 (1985).

Drunk while driving company car.

- Employee was not acting within the scope of the employee's employment when the employee fell asleep at the wheel and ran over two pedestrians, while driving home inebriated in a company car after meeting five other employees at a restaurant/bar to celebrate the impending marriage of another employee. Divecchio v. Mead Corp., 184 Ga. App. 447, 361 S.E.2d 850 (1987).

Parking a tractor-trailer as furtherance of employer's business.

- Trial court erred in granting an employer's motion for summary judgment in a widow's action to recover for the damages a driver sustained when the driver's car crashed into a tractor-trailer an employee had parked on the side of the road because the question of whether the employee's deviation from the employer's business was so slight and so closely connected with the employer's affairs that the employer could be held vicariously liable for the employee's alleged negligence had to be resolved by a jury; there was evidence that the employee's act of driving the tractor-trailer from a landfill to a contractor's job site furthered the employer's business pursuant to O.C.G.A. § 51-2-2. Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777, 709 S.E.2d 324 (2011).

Sexual advances by counselor as part of counseling "technique".

- Because the defendant hospital had not granted a drug abuse counselor any authority to make the sexual advances and the counselor abused the counselor's authority to pursue the counselor's own sexual agenda in sexually harassing plaintiff patients, the counselor's conduct was outside the scope of the counselor's employment under O.C.G.A. § 51-2-2; the counselor's attempt to explain that the counselor's misconduct was part of the counselor's counseling "technique" was irrelevant. Doe v. Fulton-DeKalb Hosp. Auth., 628 F.3d 1325 (11th Cir. 2010).

Corporation could be liable for acts of employees who acted at behest of owner.

- In a fraud claim by controlling shareholders of an LLC against an investor who wrestled control from the shareholders, the shareholders sufficiently pled that the investor's companies could be held vicariously liable for the actions of their personnel who were sent from Texas to Georgia to inspect the LLC's books and operations and who allegedly made false conclusions regarding them. TMX Finance, LLC v. Goldsmith, 352 Ga. App. 190, 833 S.E.2d 317 (2019), cert. denied, No. S20C0427, 2020 Ga. LEXIS 405 (Ga. 2020); cert. denied, No. S20C0415, 2020 Ga. LEXIS 414 (Ga. 2020).

4. Servant's Intentional Torts

Master liable even though servant's tort is willful.

- 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); Greenbaum v. Brooks, 110 Ga. App. 661, 139 S.E.2d 432 (1964).

Master is liable for the willful torts of a servant, committed in the course of the servant's employment, just as though the master had personally commanded them. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934); Brown v. Union Bus Co., 61 Ga. App. 496, 6 S.E.2d 388 (1939); Frazier v. Southern Ry., 200 Ga. 590, 37 S.E.2d 774 (1946).

Though a tort committed by a servant upon another be willful, entirely unjustified, and done in great anger, the master is nevertheless liable in damages therefore if the tort be committed by the master's command or in the prosecution and within the scope of the master's business. Southern Grocery Stores, Inc. v. Herring, 63 Ga. App. 267, 11 S.E.2d 57 (1940).

Employer is liable for the willful or malicious acts of the employer's servants done in the course of his employment and within its scope although the acts are not done by the express direction of the employer or with the employer's assent. Andrews v. Norvell, 65 Ga. App. 241, 15 S.E.2d 808 (1941).

Master is liable for the willful torts of the master's servant acting in the prosecution and within the scope of the master's business, and this is true even though the servant, at the time of the commission of such tort, may evidence anger, malice, or ill will. Frazier v. Southern Ry., 200 Ga. 590, 37 S.E.2d 774 (1946); Gaylor v. Jay & Gene's Chrysler-Plymouth-Dodge, Inc., 183 Ga. App. 255, 358 S.E.2d 655 (1987).

Master may be liable for even the willful and malicious torts of the master's servant, but to sustain liability it must appear that the tort was committed within the scope of the master's business. Community Theatres Co. v. Bentley, 88 Ga. App. 303, 76 S.E.2d 632 (1953).

Master is liable for the tort of the master's servant committed in the performance of the master's business, even when the tort is a willful one. Carmichael v. Silvers, 90 Ga. App. 804, 84 S.E.2d 668 (1954).

Fact that the alleged tort was intentional rather than negligent does not, in and of itself, preclude the doctrine of respondeat superior from being considered applicable. Sparlin Chiropractic Clinic v. Tops Personnel Servs., Inc., 193 Ga. App. 181, 387 S.E.2d 411 (1989).

Master is liable for the torts of the master's servants although torts may amount to a crime. Carmichael v. Silvers, 90 Ga. App. 804, 84 S.E.2d 668 (1954).

Fact that an act itself may be criminal does not relieve the employer of civil liability for damages caused thereby, when the act is done by the employees at the employer's command or within the scope of the employees' employment. Coleman v. Nail, 49 Ga. App. 51, 174 S.E. 178 (1934).

If the criminal act of the servant was done within the range of the servant's employment and for the purpose of accomplishing the authorized business of the master, the latter is liable. Pope v. Seaboard Air Line R.R., 88 Ga. App. 557, 77 S.E.2d 55 (1953).

Mere fact that a tortious act of an employee amounts to a crime does not, per se, relieve the employer from liability. Sexton Bros. Tire Co. v. Southern Burglar Alarm Co., 153 Ga. App. 413, 265 S.E.2d 335 (1980).

Master not responsible for servant's sexual misconduct.

- In an action in which an employee filed suit against an employer and a supervisor, alleging a claim of sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the court found that the employee could not succeed on the employee's claims against the corporate defendants based on respondeat superior; assuming, arguendo, the supervisor committed any one of the state law torts the employee alleged, the supervisor did not commit those torts in the prosecution and within the scope of the corporate defendants' business because they involved sexual misconduct. Mangrum v. Republic Indus., 260 F. Supp. 2d 1229 (N.D. Ga. 2003).

Master may be held responsible for assault and battery committed by the servant acting within the scope of employment. Greenfield v. Colonial Stores, Inc., 110 Ga. App. 572, 139 S.E.2d 403 (1964).

Assault by servant.

- When a willful and unjustified assault is committed by a servant within the scope of the servant's employment, the master is liable for the injury thus inflicted under the doctrine of respondeat superior. Broome v. Primrose Tapestry Mills, 59 Ga. App. 70, 200 S.E. 506 (1938).

When an act of a servant in committing an assault is committed in the prosecution of the master's business or the said act is within the scope of the servant's employment, the master is liable in tort. Frazier v. Southern Ry., 200 Ga. 590, 37 S.E.2d 774 (1946).

Theory that one may be an employee one minute and the very next minute become enraged, commit an assault and battery and in that act be not an employee is too fine spun a distinction. Gilbert v. Progressive Life Ins. Co., 79 Ga. App. 219, 53 S.E.2d 494 (1949).

Company not liable for agent's assault motivated by personal reasons.

- Company is not liable for damages resulting from an assault and battery inflicted by the company's agent upon a third person, when it appears that the difficulty which gave rise to the beating arose out of a personal quarrel, and that the agent, so far as related to the agent's participation therein, was acting upon the agent's individual responsibility and not within the scope of the business of the agency as an employee of the company. Jones v. Reserve Ins. Co., 149 Ga. App. 176, 253 S.E.2d 849 (1979).

Mere fact that an assault occurs during a time of ostensible employment is not dispositive of the question of scope of employment. When an assault is unrelated to the employee's task and is completely personal in nature, no genuine issue of material fact remains as to a claim based upon a theory of respondeat superior, and an employer is entitled to judgment on this issue as a matter of law. Southern Bell Tel. & Tel. Co. v. Sharara, 167 Ga. App. 665, 307 S.E.2d 129 (1983).

5. Principal - Agent Liability

Principal is liable for tort of agent within scope of principal's business. American Cas. Co. v. Windham, 26 F. Supp. 261 (M.D. Ga.), aff'd, 107 F.2d 88 (5th Cir. 1939), cert. denied, 309 U.S. 674, 60 S. Ct. 714, 84 L. Ed. 1019 (1940); DeDaviess v. U-Haul Co., 154 Ga. App. 124, 267 S.E.2d 633 (1980).

Agent not liable for negligence of principal.

- This section provides for the liability of the principal for the acts of the agent by the principal's command or in the prosecution and within the scope of the principal's business, whether the same shall be by negligence or voluntary, but it does not conversely provide that the agent is liable for the neglect or default of the principal. Crosby v. Calaway, 65 Ga. App. 266, 16 S.E.2d 155 (1941).

Agent is not liable for failure of principal to discharge affirmative duties which principal may owe, but principal is liable for carelessness of agent. Crosby v. Calaway, 65 Ga. App. 266, 16 S.E.2d 155 (1941); Verddier v. Neal Blun Co., 128 Ga. App. 321, 196 S.E.2d 469 (1973).

Acts for agent's personal benefit.

- Employer was not vicariously liable for a broker's acts in fraudulently inducing plaintiffs to invest in a nonexistent fund which the broker falsely represented as a fund of the employer, since the acts were committed for the broker's personal benefit, involved no participation by the employer, and were of no benefit to the employer. Hobbs v. Principal Fin. Group, Inc., 230 Ga. App. 410, 497 S.E.2d 243 (1998).

Trial court did not err in granting summary judgment to an insurance agency on the plaintiff's fraud claim because the acts of the agency's manager in accepting the plaintiff's premiums without obtaining insurance were personal acts for the manager's own benefit, involved no participation by the agency, and were of no benefit to the agency. GFA Bus. Solutions, Inc. v. Greenway Ins. Agency, Inc., 243 Ga. App. 35, 531 S.E.2d 134 (2000).

There should be no 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 the 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).

Contrast to federal law.

- Under Georgia law, in a true principal/agent relationship, the principal is automatically liable for the negligence of an agent acting within the scope of the agency. The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., in contrast, contemplates that a response action contractor will be independently liable for negligence or other tortious behavior and that the United States may assume the liability in certain circumstances. Amtreco, Inc. v. O.H. Materials, Inc., 802 F. Supp. 443 (M.D. Ga. 1992).

Former Code 1933, § 105-108 (see now O.C.G.A. § 51-2-2) was not contrary to former Code 1933, § 4-312 (see now O.C.G.A. § 10-6-61) because the latter properly construed does not mean the principal is 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).

Principal's consent generally implied.

- 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 a willful trespass is committed by an agent within the scope of the agency, the assent of the principal will be implied as a matter of law, and in such case it is unnecessary to make proof of an express command or assent, and the principal may be liable for the willful tort of the agent, done in the prosecution and within the scope of the principal's business. International Bhd. of Boilermakers v. Newman, 116 Ga. App. 590, 158 S.E.2d 298 (1967).

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. Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981).

Ordinarily, agent is not liable to third persons for acts of nonfeasance. Crosby v. Calaway, 65 Ga. App. 266, 16 S.E.2d 155 (1941).

Subagents hired by agents.

- Unless a primary agent, expressly or impliedly authorized by the principal as owner of an automobile to drive it on the business of the owner, is expressly or impliedly authorized to appoint a subagent for that purpose, the owner will not be liable for the negligence of the agent. Samples v. Shaw, 47 Ga. App. 337, 170 S.E. 389 (1933).

Principal may employ an agent and permit the employment by the agent of subagents or servants to aid him in carrying on the business, without becoming liable for the acts of the subagents or servants. Sinclair Ref. Co. v. Veal, 51 Ga. App. 755, 181 S.E. 705 (1935).

If a servant, who is employed to do certain work for the servant's master, employs another person to assist the servant, the master is liable for the negligence of the assistant only when the servant had authority, express or implied, to employ the assistant, or when the act of employment is ratified by the master. Carter v. Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953).

6. Independent Contractors

Employer not liable for torts of independent contractor.

- Principle of law that a master or employer is liable for a tort committed by the servant or employee about the master's business or within the course of the employee's employment is not applicable in a case where the relation between the parties is that of principal or employer and independent contractor. Whitehall Chevrolet Co. v. Anderson, 53 Ga. App. 406, 186 S.E. 135 (1936).

Absent evidence of a master-servant relationship or that the alleged master controlled the time, manner, means, or method by which the servant completed work, these independent parties were entitled to summary judgment as to the basis of liability in a wrongful death action filed against them. Gateway Atlanta Apts., Inc. v. Harris, 290 Ga. App. 772, 660 S.E.2d 750 (2008).

Entertainer was not liable for a security guard's alleged assault of a person attending a promotional event because there was no evidence that the guard was an employee, rather than an independent contractor, since there was no evidence that the entertainer controlled the manner and method of the guard's performance of the guard's security functions. Herring v. Harvey, 300 Ga. App. 560, 685 S.E.2d 460 (2009), cert. denied, No. S10C0389, 2010 Ga. LEXIS 305 (Ga. 2010), overruled on other grounds by Bowen v. Savoy, 2020 Ga. LEXIS 133 (Ga. 2020).

Distinguishing independent contractor from servant.

- Real test by which to determine whether a person was acting as the servant of another at the time of the infliction of an injury by the servant is to ascertain whether at the particular time when the injury was inflicted the servant was subject to the other person's orders and control, and was liable to be discharged from the particular employment for disobedience of orders or misconduct. Bibb Mfg. Co. v. Souther, 52 Ga. App. 722, 184 S.E. 421 (1936); Graham v. Cleveland, 58 Ga. App. 810, 200 S.E. 184 (1938).

Test to be applied in determining whether the relation is that of a servant or independent contractor lies in whether the contract of employment gives the employer the right to control the time and manner of executing the work, or the employer interferes and assumes such control, as distinguished from the right merely to require results in conformity to the contract. Whitehall Chevrolet Co. v. Anderson, 53 Ga. App. 406, 186 S.E. 135 (1936); Morris v. Constitution Publishing Co., 84 Ga. App. 816, 67 S.E.2d 407 (1951); Hotel Storage, Inc. v. Fesler, 120 Ga. App. 672, 172 S.E.2d 174 (1969); Buchanan v. Canada Dry Corp., 138 Ga. App. 588, 226 S.E.2d 613 (1976); Sloan v. Hobbs Sporting Goods Shop, 145 Ga. App. 255, 243 S.E.2d 673 (1978).

Test in determining whether one is a servant or independent contractor is whether the employer had the right, under the employment, taking into consideration the circumstances and situation of the parties, and the work, to so control and direct the work. Sparlin Chiropractic Clinic v. Tops Personnel Servs., Inc., 193 Ga. App. 181, 387 S.E.2d 411 (1989).

Workers' compensation.

- O.C.G.A. § 34-9-11 of the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., expressly abrogated the vicarious liability provisions of , O.C.G.A. § 34-9-1 et seq., § 51-2-5 which would have otherwise permitted the parents of an employee of an independent subcontractor to bring a tort action against the general contractor/statutory employer. McCorkle v. United States, 737 F.2d 957 (11th Cir. 1984).

7. Borrowed Servants

Servant loaned for particular purpose becomes servant of borrower.

- When one lends one's servant to another for a particular employment, the servant will be dealt with as a servant of the person to whom one is lent although one remains the general servant of the person who lent the servant. Hotel Storage, Inc. v. Fesler, 120 Ga. App. 672, 172 S.E.2d 174 (1969).

Special master is alone liable to third persons for injuries caused by such wrongful acts as special servant may commit in course of his employment. Bibb Mfg. Co. v. Souther, 52 Ga. App. 722, 184 S.E. 421 (1936).

Determining status as borrowed servant.

- Test to be applied in ascertaining if one is a loaned servant is: (1) that the special master must have complete control and direction of the servant for the occasion; (2) that the general master must have no such control; (3) that the special master must have the exclusive right to discharge the servant, to put another in one's place or to put one to other work. Control is the determinative factor. Hotel Storage, Inc. v. Fesler, 120 Ga. App. 672, 172 S.E.2d 174 (1969).

Because an employer, as bailor, sent the employer's own employee with the thing bailed, a tractor with an attached trash trailer, under O.C.G.A. § 44-12-62(b), a contractor, as the hirer, was liable only for the consequences of the employer's own directions or for the employer's gross negligence; the trial court erred in concluding that the contractor was entitled to summary judgment on the basis that the employee was not the contractor's borrowed servant because the evidence presented at least a factual issue regarding whether the employee was the contractor's borrowed servant since there was evidence that the contractor alone supervised the employee's work hauling debris, that the contractor controlled the employee's schedule for each day, and that the contractor dictated which landfill would receive the debris and when a load was ready. Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777, 709 S.E.2d 324 (2011).

Mere performance of work beneficial to third person insufficient.

- Mere fact that a servant is, at the time of an injury, performing work beneficial to a third person, does not render one the servant of such third person and make such third person responsible for the servant's negligent acts. Graham v. Cleveland, 58 Ga. App. 810, 200 S.E. 184 (1938).

Change of relationship must be clear.

- To show that the general employee or agent of one person has become the employee of another, with the effect of ending the general employer's responsibility for the acts of the agent, the new relationship of the parties must clearly appear. Fleming v. E.I. Du Pont De Nemours & Co., 89 Ga. App. 837, 81 S.E.2d 529 (1954).

8. Joint and Several Liability

Servant, as wrongdoer, is liable individually for tort committed within scope of master's business. Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 860 (1949).

When a servant assumes to act for the servant's master, the servant's duty to third persons, so far as it relates to the proper performance of the obligations assumed for and in behalf of the master is, to the extent of such assumption of duty, the same as that of the master, and one's failure to perform makes one liable as the master, provided, of course, one's failure to perform can be said to be the proximate cause of the injury. Atlantic Coast Line R.R. v. Knight, 48 Ga. App. 53, 171 S.E. 919 (1933), aff'd, 73 F.2d 76 (5th Cir. 1934).

Master and his servant may be jointly sued for damages resulting solely from negligence of servant, in which case the liability of the master and of the servant is joint and several. Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 860 (1949).

Master not derivatively liable unless servant liable.

- When the liability, if any, of the master to a third person is purely derivative and dependent entirely upon the principle of respondeat superior, and although not technically a joint tort-feasor, the master may be sued alone or jointly with the servant but a judgment in favor of the servant on the merits (and by analogy, a release of the servant from liability) will bar an action against the master, when injury and damage are the same. Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 860 (1949).

When, under the doctrine of respondeat superior, an action for damages against a master and servant as codefendants is based solely on the negligence of the servant, a verdict absolving the servant, but holding the master liable is contradictory and is therefore a nullity. Moffett v. McCurry, 84 Ga. App. 853, 67 S.E.2d 807 (1951).

When no actionable tort is committed such that the plaintiff might recover from the speaker, the plaintiff cannot recover against the employer. Brown v. Colonial Stores, Inc., 110 Ga. App. 154, 138 S.E.2d 62 (1964).

When the jury returned a verdict in favor of the individuals upon whose acts corporate liability depended, there was no basis for a verdict against the corporations. ESAB Distribs. S.E., Inc. v. Flamex Indus., Inc., 243 Ga. 355, 254 S.E.2d 328 (1979).

Settlement with servant releases master.

- When in an action for damages growing out of a collision between the truck of the plaintiffs, driven by their servant, and the truck of the defendants, driven by their servant, which resulted in certain property damage to the plaintiffs' truck and certain personal injuries to the defendants' servant, the plaintiffs and the defendants' servant enter into an agreement, whereby the defendants' servant for and in consideration of the payment of a certain sum by the plaintiffs, releases the plaintiffs from all claims, anticipated and unanticipated, growing out of the collision, the release constitutes a settlement of the plaintiffs' claims against the servant, and a settlement of the plaintiffs' claims against the servant necessarily constitutes a release of the defendants as there can be only one satisfaction of the same injuries. Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 860 (1949).

Master may be independently liable for own negligence.

- Rule that, when an action for damages against a master and servant as codefendants is based solely on the negligence of the servant, holding the master liable is contradictory and is therefore a nullity, has no application when there is any evidence authorizing the jury to find that the master was negligent independently of the servant-codefendants. Moffett v. McCurry, 84 Ga. App. 853, 67 S.E.2d 807 (1951).

Nature of judgment when master and servant jointly sued.

- Same principles apply to a master and servant when sued jointly in an action based solely on the negligence of the servant as would apply in cases of joint liability against joint tort-feasors; the verdict and judgment must be valid against both or it is valid against neither. Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981).

9. Pleading and Practice

Basic elements of pleading.

- Principal or master being responsible for the negligent acts of one's agent or servant only when done by command or within the scope of the employment, it is necessary, in an action seeking to charge one for the acts of another upon the theory that the latter was agent for the former, that the petition should disclose, either expressly or by necessary implication, not only the existence of the agency, but also the connection of the act with the employment. Bates v. Southern Ry., 52 Ga. App. 576, 183 S.E. 819 (1936).

General averment that act is within scope of employment sufficient for pleading purposes.

- General averment in effect that the act of the employee was committed in the prosecution of the employer's business and within the scope of the employee's authority states traversable facts rather than a mere conclusion of the law. Gilbert v. Progressive Life Ins. Co., 79 Ga. App. 219, 53 S.E.2d 494 (1949).

When the plaintiff alleges by a simple direct statement the fact that the wrongful act was the act of the defendant's servant and was committed in the prosecution of the principal's business and within the scope of the employee's authority, the plaintiff's petition is not subject to general or special demurrer (now motion to dismiss). Candace, Inc. v. Newton, 91 Ga. App. 357, 85 S.E.2d 616 (1955).

Pleading agency.

- One of the ways of pleading that agency existed so as to make alleged principal responsible for the wrongful acts of the agent is to allege by a simple direct statement that the defendant principal by its agent committed the wrongful act, and this as against a general or special demurrer (now motion to dismiss) would be sufficient. Garver v. Smith, 90 Ga. App. 892, 84 S.E.2d 693 (1954).

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. Greenfield v. Colonial Stores, Inc., 110 Ga. App. 572, 139 S.E.2d 403 (1964).

General allegation of agency will yield to specific allegations of fact which in themselves negative agency, or negative agency for the purpose and particular set of facts under which it is sought to hold the master on the doctrine of respondeat superior. Community Theatres Co. v. Bentley, 88 Ga. App. 303, 76 S.E.2d 632 (1953).

While it is true that, when a general averment that a tort was committed within the scope of an employee's authority is amplified by specific allegations which plainly and distinctly negative the general allegation that the act or acts complained of were in the prosecution of the employer's business and within the scope of the employee's authority, the specific allegations will prevail. Gilbert v. Progressive Life Ins. Co., 79 Ga. App. 219, 53 S.E.2d 494 (1949).

True test for imputing liability is agency.

- In a passenger's personal injury action against an owner of another vehicle that had been negligently driven by another, causing it to collide with the car in which the passenger was riding, summary judgment was properly granted to the owner under O.C.G.A. § 9-11-56 since the passenger did not offer evidence to support the passenger's claim for imputing liability on the owner, pursuant to O.C.G.A. § 51-2-2, beyond the passenger showing that the individual owned and insured the vehicle. The true test of liability for imputing liability was not the title or ownership but rather the agency. Collins v. Hamilton, 259 Ga. App. 52, 576 S.E.2d 42 (2002).

Petition against master fatally defective if no allegation made that servant acted within scope of employment.

- Petition which seeks to charge the defendant with liability for the act of an agent is fatally defective when the petition contains no allegation that the servant was acting within the scope of the servant's employment or in the prosecution of the agent's employer's business, and did not show that the nature of the agent's service was such that the agent's authority to perform the act on behalf of the principal could be legitimately inferred. Sherwin-Williams Co. v. St. Paul-Mercury Indem. Co., 97 Ga. App. 298, 102 S.E.2d 919 (1958).

No need to prove command or assent by master.

- 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).

10. Jury Instructions

Charge to jury.

- When the charge limited the accountability of the master the servant's for the negligence of the servant to the servant's acts when done "as the servant or agent of the defendant," this should be taken as the equivalent of a statement that the acts must have been done within the scope of the master's business. Fielder v. Davison, 139 Ga. 509, 77 S.E. 618 (1913); Collier v. Schoenberg, 26 Ga. App. 496, 106 S.E. 581 (1921).

Negligence of the defendant's servant, if any, being imputable to the defendant under the undisputed pleadings and evidence, there was no error in a reference by the court in the court's charge to the "negligence of the defendant", rather than "negligence of the driver of defendant's vehicle." Chancey v. Shirah, 96 Ga. App. 91, 99 S.E.2d 365 (1957).

11. Jury Questions

Whether servant acted within scope of employment is jury question.

- Question of whether a servant by whose act another is injured was acting within the scope of his employment is ordinarily one to be determined by the jury. Century Bldg. Co. v. Lewkowitz, 1 Ga. App. 636, 57 S.E. 1036 (1907); Friedman v. Martin, 43 Ga. App. 677, 160 S.E. 126 (1931).

Whether or not the servant was at the time acting within the scope of employment is generally a question of fact for the jury. Atlanta Hub Co. v. Jones, 47 Ga. App. 778, 171 S.E. 470 (1933).

Whether the agent was acting within the scope of employment when the agent committed a tortious act is a question of fact for the jury. Personal Fin. Co. v. Whiting, 48 Ga. App. 154, 172 S.E. 111 (1933); Digsby v. Carroll Baking Co., 76 Ga. App. 656, 47 S.E.2d 203 (1948).

Question of whether or not the servant at the time of an injury to another was acting in the prosecution of the master's business and in the scope of the servant's employment is for determination by the jury except in plain and indisputable cases. Jump v. Anderson, 58 Ga. App. 126, 197 S.E. 644 (1938).

Except in plain and palpable cases, it is for the jury to decide the question whether the servant was acting within the scope of and in furtherance of the servant's employment when the servant committed the tortious act in question. Southern Grocery Stores, Inc. v. Herring, 63 Ga. App. 267, 11 S.E.2d 57 (1940).

Whether or not an employee at the time of an assault and battery on the plaintiff, was acting in the scope of his employment and in the prosecution of the employers' business is a question for the jury. Gilbert v. Progressive Life Ins. Co., 79 Ga. App. 219, 53 S.E.2d 494 (1949).

When there is a deviation the question should ordinarily be submitted to the jury as to whether or not the deviation from the master's business was so slight as not to affect the master's responsibility for the negligent act. Cooley v. Tate, 87 Ga. App. 1, 73 S.E.2d 72 (1952).

Scope of employment may be matter of law in plain cases.

- While it is true that the question of whether a servant was acting within the scope of the servant's employment at the time of an alleged assault is generally for the jury, yet when it is plain and palpable that at the time of the assault the servant was not so acting, the appellate court may so determine, as a matter of law. Broome v. Primrose Tapestry Mills, 59 Ga. App. 70, 200 S.E. 506 (1938).

Knowledge of sexual harassment and rape.

- Disputed issues of material fact precluded the grant of summary judgment on the plaintiff's claim of intentional infliction of emotional distress under the doctrine of respondeat superior when the employer was possessed of knowledge of the accusation of sexual harassment and rape of the plaintiff by her co-employee, and the employer failed to report or correct the conduct, therefore essentially ratifying the co-employee's actions. Simon v. Morehouse Sch. of Medicine, 908 F. Supp. 959 (N.D. Ga. 1995).

Torts of Servant - Specific Cases

1. Automobiles

General rules of respondeat superior applicable to suits based on servant's operation of motor vehicle.

- If an owner of an automobile is sued for damages on account of an injury caused by the negligent operation of the automobile by the owner's chauffeur, the rules of law touching master and servant will ordinarily be applied for the determination of the liability of the former for the act of the latter. Cooley v. Tate, 87 Ga. App. 1, 73 S.E.2d 72 (1952).

Owner of vehicle also liable for negligently permitting unqualified person to use it.

- Aside from the relation of master and servant, the owner of an automobile may be rendered liable for injuries inflicted by its operation by one whom the owner has permitted to drive the automobile on the ground that such person, by reason of one's age or want of experience, or one's physical or mental condition, or one's known habit of recklessness, is incompetent to safely operate the machine. Graham v. Cleveland, 58 Ga. App. 810, 200 S.E. 184 (1938).

Master not liable when servant uses vehicle for personal reasons not within scope of employment.

- When an employee, instead of returning "immediately" to the employer's place of business, as it was the employee's duty to do, proceeded in the opposite direction from the place of business of the employer on what the employee termed a "joy ride," the enterprise was purely the private affair of the employee, and one which bore no relation whatever to the prosecution of the employer's business. Dawson Chevrolet Co. v. Ford, 47 Ga. App. 312, 170 S.E. 306 (1933).

Since the servant is not permitted to use the car for the servant's own benefit during the interval before the servant is required to act for the owner, and the servant uses the car of employer for the servant's own personal business during this interval, the employer is not liable. Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117, 185 S.E. 147 (1936).

Owner of an automobile is not liable for injuries caused by the chauffeur's negligent operation of the car at a time when the conduct of the chauffeur took the chauffeur outside the scope of the chauffeur's employment and when his conduct was a complete departure instead of a "deviation" or "detour" incidental to employment. Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117, 185 S.E. 147 (1936).

Fact that the defect in the car was that it did not have a rear red light attached, even if known to the owner, would not in this case create a liability on the part of the owner, since the owner on the night in question did not know the employee would use the car. Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117, 185 S.E. 147 (1936).

Owner of an automobile is not liable for an injury from negligent driving thereof by an employee who was using the car for a private purpose entirely disconnected from the owner's business. Holland v. Cooper, 192 F.2d 214 (5th Cir. 1951).

When a servant, while not engaged in the performance of the master's business, and during a time when the servant is free to engage in the servant's own pursuits, uses the master's automobile for the servant's own purposes (although the servant does so with the knowledge and consent of the master), and, while so using it, negligently injures another by its operation, the master is not liable. Cooley v. Tate, 87 Ga. App. 1, 73 S.E.2d 72 (1952); May v. Phillips, 157 Ga. App. 630, 278 S.E.2d 172 (1981).

If, while a servant is not engaged in the performance of the master's business, and during a time when the servant is free to engage in the servant's own pursuits, the master lends the servant an automobile, and while the servant is using it for the servant's own pleasure, disconnected from any business of the master, the servant negligently injures another by its operation, the servant will stand in the same position as would another borrower; and the master will not be liable for the servant's acts on the doctrine of respondeat superior. Cooley v. Tate, 87 Ga. App. 1, 73 S.E.2d 72 (1952).

When a servant is permitted by the master to use a vehicle for the servant's own pleasure or business, wholly disconnected from that of the master, and a third party is injured by the servant's negligent operation of the vehicle while on the servant's own mission, the master cannot be held liable under the doctrine of respondeat superior. Harper v. Brown, 122 Ga. App. 316, 176 S.E.2d 621 (1970).

There was no evidence that the attempt of an employee of a law firm to deliver a check was in furtherance of the employer's business based on the fact that the employee was asked by a fellow employee to deliver the check which was issued by an entity other than the employer for initiation of phone service for an entity other than the employer. Chorey, Taylor & Feil, P.C. v. Clark, 273 Ga. 143, 539 S.E.2d 139 (2000).

Servant acting outside the scope of employment because acting under direction of another.

- Defendant owner of truck was not liable for injury suffered by the plaintiff repairman who was injured while repairing the truck's motor when the employee of the defendant started the motor, thereby causing the injury, as the employee was not at the time acting as a servant or agent of the defendant, but was acting under the direction of the plaintiff and was the plaintiff's agent or servant to manipulate the truck under the direction so as to facilitate the plaintiff's work in making the repairs on the truck. Carstarphen v. Ivey, 66 Ga. App. 865, 19 S.E.2d 341 (1942), criticized, Griffin v. Hardware Mut. Ins. Co., 93 Ga. App. 801, 92 S.E.2d 871 (1956).

Servant engaging substitute driver without permission.

- When one who is employed to drive a motor vehicle, without the consent of and against specific instructions of the master engages a substitute driver, the master is not liable for the negligence of the substitute driver unless the act of the servant employing the substitute driver be ratified by the master. Carter v. Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953).

Unless a primary agent, expressly or impliedly authorized by the principal as owner of an automobile to drive the automobile on the business of the owner, is personally expressly or impliedly authorized to appoint a subagent for that purpose, the owner will not be liable for the negligence of the latter. Carter v. Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953).

Driver not servant to owner.

- When the owner of an automobile delivers the owner's car to the agent of another, who is engaged in the operation of a parking lot for automobiles for hire, for the purpose of parking the car in that lot a short distance away, such agent does not become the servant of both the owner of the car and the owner and operator of such parking lot so as to make them jointly liable for the negligent operation of the car, nor does the petition set out a joint cause of action against such defendants by reason of an allegation that both of the defendants "knew or could have known" that the agent was a reckless and incompetent driver, but nevertheless permitted and directed the agent to operate the car. Graham v. Cleveland, 58 Ga. App. 810, 200 S.E. 184 (1938).

Under the facts the person who was operating the automobile at the time of the collision was the servant and employee of the manager of the service station, and was not the servant, employee, or agent of the defendant owner of the car, to whom the car was being delivered following its washing at the service station, and the defendant owner was therefore not liable for damages caused by the collision. Simmons v. Beatty, 61 Ga. App. 759, 7 S.E.2d 613 (1940).

Employee acting as independent contractor.

- Automobile salesperson employed on a commission basis, who operates the salesperson's own automobile to aid the salesperson's in carrying on the salesperson's employment, and whose movements are not controlled by the salesperson's employer, is, with respect to the operation of the salesperson's automobile, an independent contractor, and the employer is not liable in damages for an injury to a person who was riding in the car with the employee and to whom the salesperson was trying to sell an automobile of the employer at the time, although the injury was caused by the negligence of the employee in the operation of the salesperson's automobile. Whitehall Chevrolet Co. v. Anderson, 53 Ga. App. 406, 186 S.E. 135 (1936).

When defendant company did not have any right to direct the manner, method, or means of performance of the work of operating and driving of the truck, owned by another, the driver of the truck was not the defendant's servant, but was the servant of the owner, an independent contractor, and the defendant was not liable for the negligence of the driver of the truck in the truck's operation along a public highway, resulting in injury to the plaintiff. Brown v. Georgia Kaolin Co., 60 Ga. App. 347, 4 S.E.2d 100 (1939).

Owner of automobile is not liable for act of servant who exceeds his authority by permitting third person to ride with servant. Greeson v. Bailey, 167 Ga. 638, 146 S.E. 490 (1929).

Driver of a motor vehicle, in the absence of express or implied authority from the owner to permit third persons to ride therein, is ordinarily held to be acting outside the scope of his employment in permitting them to do so. Braselton v. Brazell, 49 Ga. App. 269, 175 S.E. 254 (1934).

Evidence that the plaintiff's son was riding on the running board of the defendant's car, which was being driven at the time by one not an employee at the request of defendant's spouse for a mission of the spouse's own, in violation of the positive order of the defendant never to permit anyone to ride on the running board, demanded a verdict in defendant's favor as the driver's act was beyond the scope of the driver's authority and created no liability as between the rider on the running board and the defendant. Summers v. Barron, 59 Ga. App. 202, 200 S.E. 228 (1938).

When agent, servant, or employee of the defendant, while driving an automobile in and about the defendant's business and in performance of the services for which one was hired or which one contracted to perform for one's principal or master, invites a third person to ride as a guest, and such third person is injured by reason of the negligence of the driver, no right of action arises in favor of such third person against the owner of the automobile for a tort committed by the driver as the driver's agent, servant, or employee. Beard v. Oliver, 52 Ga. App. 229, 182 S.E. 921 (1935).

Although the driver was the agent, servant, or employee of the defendant, and was driving the automobile in and about the defendant's business and in performance of the services for which the agent was hired, if while so engaged the agent invited a third person to ride with the agent as a guest, and thereupon such guest was killed by reason of the negligence of the driver, which negligence may have amounted to gross negligence, no right of action arose against the owner of the automobile and in favor of such person who may be entitled to sue on account of the wrongful death, unless it should also appear that the guest was in the automobile with the authority, knowledge, or consent of the owner. Carpenter v. Lyons, 78 Ga. App. 214, 50 S.E.2d 850 (1948).

Driver employed by the owner of an automobile who invites another as the driver's guest to ride in the automobile without the knowledge, authority, or consent of the owner is acting outside the scope of his employment, and the owner is not liable on account of the guest's death caused by negligence of the driver. Carpenter v. Lyons, 78 Ga. App. 214, 50 S.E.2d 850 (1948).

Owner not liable when loan of vehicle is mere bailment.

- If the furnishing of an automobile is within what may be said to be a "business" of the owner, one to whom the car is entrusted for such purpose is not a bailee, as in a case of lending, but is a servant or agent; if on the other hand, the car is furnished by the owner merely as an accommodation to the other, with no interest or concern in the purpose for which the other will use it, then its use, whether for recreation or otherwise, is not within the business of the owner, and the transaction is a mere bailment. Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167, answer conformed to, 52 Ga. App. 262, 183 S.E. 98 (1935).

Relationship between dealer in automobiles and prospective purchaser was that of bailor and bailee, not principal and agent or master and servant, and the dealer was not liable for injuries accruing to third person by reason of the negligent operation of the automobile by the prospective purchaser while trying the vehicle out. Harris v. Whitehall Chevrolet Co., 55 Ga. App. 130, 189 S.E. 392 (1936).

Servant a mere bailee when using vehicle for personal reasons with master's permission.

- Operation of the master's vehicle by a servant with the master's knowledge, consent, and permission, but on a mission purely personal to the servant, places the servant in the same position as that of any borrower of a vehicle, and as to the use of the vehicle on the personal mission the relationship is that of bailor and bailee only. Harper v. Brown, 122 Ga. App. 316, 176 S.E.2d 621 (1970).

No employer liability.

- Although the driver of a company vehicle was negligent per se, the driver was not acting within the scope of the driver's job and the driver's corporate employer was not liable for the accident. Torres v. Tandy Corp., 264 Ga. App. 686, 592 S.E.2d 111 (2003).

County was not liable for its employee's collision with another driver under O.C.G.A. § 51-2-2 or respondeat superior, because although the employee was on call for the county, the employee was driving the employee's personal vehicle on the employee's way to work for another employer, and there was no evidence that the employee was acting at the county's direction at the time of the collision. Williams v. Baker County, 300 Ga. App. 149, 684 S.E.2d 321 (2009).

When the driver was killed and the passenger was injured after a tire from the employee's vehicle struck the driver's vehicle, the employer's motion for summary judgment was improperly denied because there was no negligent act by the employee at the time of the injury for which vicarious liability could attach to the employer as both the employee and the employee's passenger testified that they did not notice anything wrong with the truck on the day of the collision; and the engineering expert's vague and equivocal testimony was insufficient to show that the employee had knowledge of the vehicle's unsafe condition. In/Ex Systems, Inc. v. Masud, 352 Ga. App. 722, 835 S.E.2d 799 (2019).

After the plaintiff was injured in an accident while riding the plaintiff's motorcycle, and sued the driver of the car that struck the plaintiff and the driver's employer, asserting vicarious liability claims against the employer, the trial court erred in denying the employer's motion for summary judgment because the driver was not acting within the scope of the driver's employment at the time of the accident as there was no evidentiary support for the plaintiff's theory that the driver was on the driver's way to run an errand for the employer; and the positive and uncontradicted evidence was that the driver was on the driver's lunch break at the time of the accident. Mannion & Mannion, Inc. v. Mendez, 355 Ga. App. 28, 842 S.E.2d 334 (2020).

Business purpose need not be sole reason for servant's use of vehicle.

- Sole purpose of the use of a vehicle by a servant does not have to be furtherance of the employer's business. As long as one of the purposes is such, it makes no difference that the vehicle is "also being used in part for the accommodation of the driver." Johnson v. Franklin, 312 F. Supp. 310 (S.D. Ga. 1970).

Compensation to servant not required.

- It is not essential that the relationship between the owner and driver such as to make the owner liable for the acts of the driver should be a business one or that the service be a remunerative service; an agency or servant relationship does not depend on an express appointment but may be implied from the circumstances of the case and, thus, one driving the owner's car at the owner's request and for the owner's purposes is the owner's servant or agent. Powell v. Kitchens, 84 Ga. App. 701, 67 S.E.2d 203 (1951).

Servant may resume duties after detour in which case master's liability reattaches.

- When a servant whose duty in the employment of the master, is to drive a truck and to make delivery of an article of merchandise at a designated place, and then return with the truck to the garage where the truck is to be placed for the night, and when the servant, after having proceeded to the place for delivery of the merchandise, instead of proceeding to return the truck to the garage, makes a temporary departure from the service of the master on a devious course from that necessary to return the truck to the garage on a mission of the servant's own, and when, after attending to this mission, the servant proceeds to return the truck to the garage as the servant's duties to the master require the servant, the servant has then resumed the servant's duties to the master, and in the operation of the truck for the purpose of returning the truck to the garage the servant is acting within the scope of the servant's authority and is in the discharge of the servant's duty to the master; when in returning the truck to the garage, the servant negligently runs the truck against and injures an automobile belonging to another person, the servant's negligence is the negligence of the master. Atlanta Furn. Co. v. Walker, 51 Ga. App. 781, 181 S.E. 498 (1935).

Slight detour to get a meal.

- If an employee, who is driving to or from a destination while acting within the scope of his or her employment and in furtherance of the employer's business, detours slightly from the direct or customary route to that destination to get a meal, and if there is evidence that it serves the employer's interests for the employee to make the slight detour for that purpose, a jury issue exists regarding whether the employee is acting within the scope of the employee's employment during the brief detour. Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777, 709 S.E.2d 324 (2011).

As general rule, servant in going to and from the servant's work in automobile acts only for the servant's own purposes and not for those of the servant's employer, and consequently the employer is not to be held liable for an injury occasioned while the servant is en route to or from the servant's work. McGuire v. Gem City Motors, Inc., 296 F. Supp. 541 (N.D. Ga. 1969); Johnston v. United States, 310 F. Supp. 1 (N.D. Ga. 1969).

Vicarious liability of joint owners of vehicle.

- When two persons jointly own an automobile and employ a chauffeur and practically have an equal right to the use of the machine and the services of such chauffeur, both of such joint owners are liable for the negligence of the chauffeur although at the time of the accident only one of the owners is enjoying the use of the machine, but if one of the owners singly employs a chauffeur and has the sole control of the chauffeur's conduct at the time of an accident, the co-owner is not charged with liability. Raley v. Hatcher, 61 Ga. App. 846, 7 S.E.2d 777 (1940).

Sufficiency of pleadings.

- Petition alleging that defendant's servant, engaged in hauling freight in interstate commerce, playfully and negligently drove truck towards the plaintiff, and misjudging the distance and speed, struck the plaintiff, inflicting certain injuries, set out a cause of action against the defendant. Jump v. Anderson, 58 Ga. App. 126, 197 S.E. 644 (1938).

When it was alleged that at the defendant's special request an individual was using the defendant's vehicle for the purpose of looking after the needs of the defendant's aged parents and sister, two of whom were ill, that the individual had been spending several nights at their home and carrying them groceries and medicines, and that the individual was at the time proceeding toward their home to attend to their needs during the night, that all of these acts were at the defendant's request and for the defendant's benefit, and this was the purpose for which the car had been entrusted to the individual, which purpose the individual was actually attempting to effectuate at the time of collision, it could not be said as a matter of law that the petition failed on the petition's face to show an agency relationship. Powell v. Kitchens, 84 Ga. App. 701, 67 S.E.2d 203 (1951).

Two delivery truck drivers of the defendant, who unlawfully and criminally forced their way into the plaintiff's home for the purpose of committing an unlawful act, were not acting in furtherance of their master's business, but were acting outside of the scope of their employment, and the petition brought against the employer did not set forth a cause of action under the doctrine of respondeat superior. Parry v. Davison-Paxon Co., 87 Ga. App. 51, 73 S.E.2d 59 (1952).

Allegation that the defendant was at the time of the automobile accident an agent and employee of the owner of the vehicle acting within the course and scope of the agent's employment, with the express permission and consent and for the benefit of the latter is a sufficient allegation of agency to bind the owner for the tortious misconduct of the defendant. Belch v. Sprayberry, 97 Ga. App. 47, 101 S.E.2d 870 (1958).

Prima facie case of master's liability.

- When, in a suit to recover damages against the master for injury because of the negligence of a servant in operating a motor vehicle which was negligently driven against the automobile of a third person causing injury, the evidence establishes: (a) that the motor vehicle belonged to the master; (b) that the servant was an employee of such master; and (c) that at the time of the collision the servant was in control of and operating the motor vehicle of the master, a prima facie case is made for the plaintiff, and the burden of proof shifts to the master to prove, by testimony, if the master can, that at the time of the collision the servant was not acting for the master and within the scope of the employment of the servant. Atlanta Laundries, Inc. v. Goldberg, 71 Ga. App. 130, 30 S.E.2d 349 (1944).

When, the evidence for the plaintiff established the plaintiff's (a) the truck which was driven into the rear of the driver's car belonged to the defendant corporation; (b) the operator of the truck was an employee of the defendant; and (c) the employee was at the time of the collision in exclusive control of and negligently operating the truck, causing damage, a presumption arose that the employee was at the time engaged in the master's business, within the scope of the employment and that the defendant was liable for the defendant's negligent conduct; this presumption could be overcome by testimony, it generally being a jury question under all the facts and circumstances as developed by the whole evidence as to whether such presumption was rebutted by the evidence. Atlanta Laundries, Inc. v. Goldberg, 71 Ga. App. 130, 30 S.E.2d 349 (1944).

Sufficiency of evidence.

- When there was nothing in the evidence declarations of alleged agent and alleged statements of the defendant over the telephone to support the contention of the plaintiff that the automobile belonged to the defendant, or that at the time of the collision it was being used for the defendant, and in and about the defendant's business, the evidence was not sufficient to support the verdict against the defendant. Greble v. Morgan, 69 Ga. App. 641, 26 S.E.2d 494 (1943).

Although the evidence established the fact that the employee temporarily (after making delivery of laundry) turned aside from the scope of the employee's duty to engage in beer drinking, which was personal to the employee, and of no concern to the employee's master, and was outside the scope of the employee's employment, under the facts the jury were authorized to find that at the time of the collision the employee had finished the personal deviation and had returned to his duties within the scope of the employee's employment, and had at the time resumed the employee's master's business. Atlanta Laundries, Inc. v. Goldberg, 71 Ga. App. 130, 30 S.E.2d 349 (1944).

In an action to recover damages on account of personal injuries sustained by being struck by an automobile truck of the defendant corporation, when the evidence not only failed to show that the driver of the truck was employed by the defendant company at the time of the accident, but there is no evidence at all that driving a truck was within the scope of the driver's employment or that the driver had ever been seen doing so, the evidence was such that a verdict for the plaintiff would have been unauthorized and contrary to law, and it was proper for the court to direct a verdict for the defendant. Johnson v. Webb-Crawford Co., 89 Ga. App. 524, 80 S.E.2d 63 (1954).

2. Corporations

Corporation is responsible for acts of its agents in the business of their employment, just as individual is liable. Personal Fin. Co. v. Whiting, 48 Ga. App. 154, 172 S.E. 111 (1933); Digsby v. Carroll Baking Co., 76 Ga. App. 656, 47 S.E.2d 203 (1948).

Corporation is liable for the tort of its watchman who arrests a person under a mistaken idea that the latter is intoxicated. Exposition Cotton Mills v. Sanders, 143 Ga. 593, 85 S.E. 747 (1915).

When a manufacturing company employs and pays a public officer to keep order on its premises, protect its property, and make arrests of persons violating the state laws, if such servant in the prosecution of the servant's duties as such servant and within the scope of the master's business commits a tortious act, the master is liable for the servant's tort. Massachusetts Cotton Mills v. Hawkins, 164 Ga. 594, 139 S.E. 52 (1927).

When under the allegations of the petition, the managing officer of the defendant corporation was the alter ego of the corporation, the officer's command, in directing the servant of the corporation to use a truck of the corporation in transporting the plaintiff's son who was killed when the truck overturned, was that of the corporation itself. Sumter Milling & Peanut Co. v. Singletary, 79 Ga. App. 111, 53 S.E.2d 181 (1949).

Corporation not liable when servant acts from personal motivation or outside scope of business.

- Mere averment in a petition that the slanderous utterance was made by the "manager" of the defendant's store, "in charge of the business of the defendant and so acting at the time complained of," was insufficient to authorize a recovery upon the theory of slander, since the utterance was not made by one who prima facie was the alter ego of the corporation, and presumably was authorized to speak for the corporation, and, since there was no allegation of any express direction or authority from the corporation to speak the words in question. Sims v. Miller's, Inc., 50 Ga. App. 640, 179 S.E. 423 (1935).

Petition failed to set out a cause of action against the beer distributing company for the wrongful death of the plaintiff's son, an innocent bystander killed when the company's sole stockholder and an accomplice were attempting to murder another in revenge for that person's alleged theft from the company. Heath v. Atlanta Beer Distrib. Co., 56 Ga. App. 494, 193 S.E. 73 (1937).

When a servant, at the time having no dealings with the plaintiff with reference to the business of the servant's employer, took offense at what the servant thought was an abusive and disrespectful remark cast at the servant by the plaintiff, and immediately assaulted the plaintiff therefor, the master is not responsible for such servant's conduct, even though at the time of the assault the plaintiff was trespassing on the master's property, contrary to instructions theretofore given the by such servant, who had authority to evict the trespassers from property of the master, and even though in making such assault the servant may have incidentally evicted the plaintiff from the premises, and by the assault rendered it less probable that the plaintiff would be guilty of any future trespass. Broome v. Primrose Tapestry Mills, 59 Ga. App. 70, 200 S.E. 506 (1938).

Corporation not responsible if alleged tort-feasor not its servant.

- Corporation is not liable for the acts of city police chief, while acting as such, in preventing the commission of a crime by the plaintiff and others about the property of the corporation, even though the corporation's agent may have commanded the police chief to do the act which caused injury to the plaintiff. Kent v. Southern Ry., 52 Ga. App. 731, 184 S.E. 638 (1936).

Corporation is not chargeable with acts of agent done solely for the agent's own benefit and from which no benefit accrues to the corporation. Atlanta Hub Co. v. Bussey, 93 Ga. App. 171, 91 S.E.2d 66 (1956).

Company is not chargeable with acts committed by its president in the president's individual capacity and for the president's personal benefit only. Harper v. Brown, 122 Ga. App. 316, 176 S.E.2d 621 (1970).

When one who is agent of corporation commits tort at places other than 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. Greenfield v. Colonial Stores, Inc., 110 Ga. App. 572, 139 S.E.2d 403 (1964).

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

Corporation is not liable for malicious acts of its agent or officer unless the acts are authorized, or were within 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).

Banking corporation is not liable for damages resulting from a false statement maliciously and willfully made by its 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 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).

Bank is not liable for a malicious prosecution in which its vice-president participated, encouraged, and aided, and purported to act for the corporation, when 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 same. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

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

Corporation may, in proper case, be liable for malicious prosecution when the prosecution is conducted by an agent or servant in furtherance of the business of the former, and within the scope of the latter's authority. Atlanta Hub Co. v. Bussey, 93 Ga. App. 171, 91 S.E.2d 66 (1956).

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 (1990).

Even though tort-feasor is owner and sole stockholder, corporation is not liable unless tort-feasor is acting within scope of the tort-feasor's employment or in the line of business of the corporation at the time. Harper v. Brown, 122 Ga. App. 316, 176 S.E.2d 621 (1970).

3. Railroads

Railroad liable for torts committed by servants in course of employment.

- Even though the act of a trainman in beckoning and signaling to plaintiff to proceed was without the express or implied assent of the railroads as the railroads had limited the trainman's duties to attending the train, and at crossings, the trainman's duty did not extend beyond seeing that the train did not injure anyone at the crossing, the defendant railroads would be responsible for the wrongful act of the trainman, if committed in the prosecution of the trainman's business with the railroads, and if, as a result thereof, the plaintiff was injured. Louisville & N.R.R. v. Ellis, 54 Ga. App. 783, 189 S.E. 559 (1936).

When an employee, acting in the scope of employment, with the use of a lantern or other instrumentality, knocks a fellow employee from a railroad engine by the tracks, and to one's death, the master is liable for the employee's voluntary act. Frazier v. Southern Ry., 200 Ga. 590, 37 S.E.2d 774 (1946).

Railroad not liable when servant acts for personal reasons outside scope of employment.

- When it appeared that the real purpose of the person assaulted in approaching the agent of a railroad company at the agent's place of business was solely to renew a mere personal quarrel between the plaintiff and the agent, the plaintiff being under notice that the agent was acting according to the agent's instructions, the railroad company had no concern in what passed between them, and the trial judge did not err in granting a nonsuit. Dugger v. Central of Ga. Ry., 36 Ga. App. 782, 138 S.E. 266 (1927).

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 a passenger, when a servant committing the act has not been entrusted with the performance of any duty owing by a master to the passenger, and when the master is not negligent in failing to anticipate, or to prevent, the performance of the act of the servant. Massengale v. Atlanta, B. & C.R.R., 46 Ga. App. 484, 168 S.E. 111 (1933).

Railroad company is not liable in damages for a homicide committed by a servant, when the homicide was not committed in the prosecution of the master's business and within the scope of the servant's employment, but was the servant's personal act in resenting a real or fancied insult. Frazier v. Southern Ry., 200 Ga. 590, 37 S.E.2d 774 (1946).

Alleged tort-feasor not a servant.

- When employee of the Southern Railway solicited the aid of the city police chief in removing striking employees of a mill engaged in criminal trespass of railroad tracks, and told that officer to fire upon the strikers after requests and threats had failed, and the police officer did so fire, police officer was acting in the officer's official capacity and not as an agent of the railroad, and the injured party had no cause of action against the railroad. Kent v. Southern Ry., 52 Ga. App. 731, 184 S.E. 638 (1936).

4. Retail Sales

Retail sales employer liable for torts of servant committed within scope of employment.

- Customer lawfully on the premises of a mercantile establishment for the purpose of transacting the business for which the establishment is operated is there by invitation of the proprietor of the establishment, and if, while thus lawfully on the premises, the customer is unlawfully assaulted and beaten by an employee of the proprietor while acting within the scope of the employment, the proprietor is liable therefor. J.M. High Co. v. Holler, 42 Ga. App. 657, 157 S.E. 209 (1931).

Master who puts a servant in a place of trust or responsibility, or commits to the servant the management of the master's business, or the care of the master's property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion of protecting the master's property, goes beyond the line of his strict duty or authority, and inflicts unjustifiable injury upon another. A company must take the risk of infirmity of temper, maliciousness, and misconduct (committed in the course of the servant's employment) of the employees whom the company has placed in charge of the company's business. Great Atl. & Pac. Tea Co. v. Dowling, 43 Ga. App. 549, 159 S.E. 609 (1931).

When the defendant had not instructed or authorized its collector to pursue an improper course in the collection of bills due it, or to commit a tort, this did not necessarily prevent a recovery from the defendant. Atlanta Hub Co. v. Jones, 47 Ga. App. 778, 171 S.E. 470 (1933).

Petition which alleged that the plaintiff, while present in the defendant's store as a customer, desiring to make a purchase from the defendant, was in a loud and angry tone, which could be heard by other customers present, falsely and unjustly accused by one of the defendant's clerks of having in a handbag a certain article belonging to the defendant, which charge humiliated and embarrassed the plaintiff, set out a cause of action for a willful and intentional tort, that is, the failure to protect the plaintiff as a customer, lawfully upon the defendant's premises, from injury caused by the misconduct of the defendant's employees. Sims v. Miller's, Inc., 50 Ga. App. 640, 179 S.E. 423 (1935).

If the conduct of employees outside of the scope of their employment, or of third persons or customers, is such as to cause any reasonable apprehension of danger to other customers or invitees because of such conduct, it is the duty of the proprietor to interfere to prevent probable injury; and a failure so to interfere, and consequent damage, will subject such proprietor to an action for damages for such negligent failure to prevent the injury; but this duty of interference on the proprietor's part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger. Great Atl. & Pac. Tea Co. v. Cox, 51 Ga. App. 880, 181 S.E. 788 (1935).

If there is any reasonable apprehension of danger to a customer from the unlawful conduct of other customers or third persons, or if a personal injury from the misconduct of other customers or third persons could have been prevented by the proprietor by the exercise of ordinary care and diligence, the proprietor may be guilty of negligence for the proprietor's failure to use it, and consequently responsible in damages. Great Atl. & Pac. Tea Co. v. Cox, 51 Ga. App. 880, 181 S.E. 788 (1935).

When the plaintiff was engaged in picketing a grocery store, and the store manager threw pepper on the sidewalk and swept the pepper into the plaintiff's face, and also poured ammonia on the sidewalk, in an effort to deter the plaintiff from picketing the store, the petition was not subject to demurrer (now motion to dismiss) on the grounds that the manager was not acting within the scope of the employment. Southern Grocery Stores, Inc. v. Herring, 63 Ga. App. 267, 11 S.E.2d 57 (1940).

If a company by its agent gives instructions for the use of its explosive products, it is liable for its negligence in giving such instructions in connection with the sale of its products. Fleming v. E.I. Du Pont De Nemours & Co., 89 Ga. App. 837, 81 S.E.2d 529 (1954).

When there was evidence that the defendant's explosives sales agent, in advising and instructing a county engineer as to the method of detonation and the quantities of explosives necessary to blast rock from the county's quarry, was acting in the scope of employment and in the prosecution of the defendant's business, and was not subject to the county's control in the performance of the agent's duties connected with the sales of explosives, and that, as a result of the negligence of the defendant's agent in instructing the county engineer to use a large quantity of explosives, to be detonated in a short time, a blast was performed in the county's quarry according to the instructions given, thereby causing the damage to the plaintiffs' house as alleged, the court erred in refusing to vacate a judgment on nonsuit and reinstate the plaintiffs' case. Fleming v. E.I. Du Pont De Nemours & Co., 89 Ga. App. 837, 81 S.E.2d 529 (1954).

In consideration of the problem of whether insults by employees are actionable against employers, both the public interest with which the defendant is invested and the willful character of the act committed against the plaintiff must be considered. Brown v. Colonial Stores, Inc., 110 Ga. App. 154, 138 S.E.2d 62 (1964).

Invitee on the premises of an invitor/employer for the purpose of transacting business has a cause of action against the invitor when one 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. Greenfield v. Colonial Stores, Inc., 110 Ga. 572, 139 S.E.2d 403 (1964).

When the plaintiff was struck by an unidentified individual running down the aisle of a grocery store owned by the defendant, the court erred in granting summary judgment to the defendant when it appeared from the attire of the unidentified individual that the individual was a store employee and there was evidence from which it could be inferred that the individual was either running to clock in or running to the back of the store to do some aspect of the individual's job. Beverly v. J.H. Harvey Co., 237 Ga. App. 21, 515 S.E.2d 404 (1999).

Restaurant employee acted within scope of employment based on evidence that the employee was cooking while using offensive language against the plaintiff customers, identified as a restaurant employee when the employee called the police and told the responding officer that the employee was in charge, and based on the employee's testimony that the employee believed the employee was doing the employee's job when the employee called the police stating that the employee had to handle the situation because no manager was present. Middlebrooks v. Hillcrest Foods Inc., 256 F.3d 1241 (11th Cir. 2001).

It is duty of one who invites members of general public to come to his place of business to protect such customers or invitees from injury caused by misconduct of one's own employees, in the conduct and scope of one's business, and from the misconduct of other persons who come upon the premises. Great Atl. & Pac. Tea Co. v. Cox, 51 Ga. App. 880, 181 S.E. 788 (1935).

Owner of an establishment operated for the purpose of selling beer to the public owes a duty to a customer, who is lawfully in the owner's place of business by the owner's implied invitation for the purpose of purchasing beer, to protect the customer against a willful and intentional tort committed by one employed by the owner to operate such establishment. Andrews v. Norvell, 65 Ga. App. 241, 15 S.E.2d 808 (1941).

Proprietor of a saloon is bound to exercise ordinary care and diligence to see that one who enters the propietor's saloon as a customer and patron is protected from willful misconduct and practical jokes which cause bodily harm to the patron and customer, perpetrated by one employed by the proprietor to operate such saloon. Andrews v. Norvell, 65 Ga. App. 241, 15 S.E.2d 808 (1941).

In a customer's suit for assault, the true test is whether the assault is so related to, and so integrally a part of the transaction of a company's business as to logically and inescapably grow out of it. On the premises or off, a business establishment which invites customers to come in and trade owes to them the duty of not sending its employees out after them to commit unlawful assaults upon them while acting within the scope of employment. Colonial Stores, Inc. v. Sasser, 79 Ga. App. 604, 54 S.E.2d 719 (1949).

No liability when employee pursuing own interests.

- Gasoline station operators were not liable under the doctrine of respondeat superior to a customer who was assaulted by a station employee, when the employee was pursuing the employee's own, and not the master's, interest when the employee grabbed the customer and asked the customer to "party." Slaton v. B & B Gulf Serv. Center, 178 Ga. App. 701, 344 S.E.2d 512 (1986).

When salesperson acts as independent contractor.

- If the manner in which the details of the work of selling defendant's automobiles are to be done is left to the salesperson, and the defendant company is interested only in the result of the salesperson's work, the salesperson is an independent contractor. Whitehall Chevrolet Co. v. Anderson, 53 Ga. App. 406, 186 S.E. 135 (1936).

Employer not responsible for acts of subagent.

- Principal who has put goods for sale into the hands of an agent, the agent having no power to delegate the agent's authority, and it being perhaps a wrongful act on the part of the agent to entrust them to any one else, and a wrongful act on the part of the latter to exercise any control over them, may be willing that the agent may employ a subagent so far that the entrusting of the goods by the agent to the subagent, or the exercise of control over them by the latter, or the latter's sale of them upon the terms prescribed to the agent, may all be acts done with the principal's consent, and yet not done by a person who stands in any contractual relations to the principal, or who can look to the principal for compensation, or for whose promises or conduct the principal would be responsible to third persons. Sinclair Ref. Co. v. Veal, 51 Ga. App. 755, 181 S.E. 705 (1935).

When an oil refining company made a written contract with another as its agent to sell its products within a certain territory, and provided that the agent should pay all necessary expenses in draying the company's products and equipment and in making sales, deliveries, and collections, and the company merely furnished the products to be sold, notwithstanding it may have had rules and regulations binding upon its agent as to the character of the subagent and as to the conduct of the business for the sale of its product, and when a truck driver was employed by the agent to drive the truck furnished by the agent to transport, sell, and deliver the company's products to customers, and was hired and paid by the agent out of the agent's own funds, and the agent had control and direction of the operation of the truck and gave orders and directions to the driver as to what to do, and had control of the driver and the driver's activities, and control of the time, manner, means, and methods of the driver in the execution of the work, the truck driver, in selling the products of the company by delivery from the truck while in the performance of the work for which one was employed, was the servant of the agent, and not the servant of the company; the company therefore was not liable for a mistake of the driver in delivering gasoline instead of kerosene to a purchaser. Sinclair Ref. Co. v. Veal, 51 Ga. App. 755, 181 S.E. 705 (1935).

Jury to determine whether employee acted within scope of business.

- Under the allegations of the petition the plaintiff, at the time of the plaintiff's injury, was an invitee of the defendant cotton mill, and it was a question for the jury whether or not the act of the defendant's store manager, in striking and injuring the plaintiff, was so closely connected with the employer's business as to render the defendant liable for the willful assault of its servant. Crawford v. Exposition Cotton Mills, 63 Ga. App. 458, 11 S.E.2d 234 (1940).

5. Miscellaneous

Game warden.

- When petition alleged that a willful tort (the fatal shooting of plaintiff's husband) by a servant (game warden on plantation) was committed in the prosecution and within the scope of the servan't business and employment, and stated facts in support thereof, which, in connection with legitimate inferences, might establish the truth of the allegation, the question of the master's liability was one of fact. Estridge v. Hanna, 55 Ga. App. 159, 189 S.E. 364 (1936).

Grounds keeper.

- When the servant, while engaged in the duties of the employment (to keep trespassers off the defendant's land), shot the plaintiff, and when it did not appear from the allegations in the petition that the servant at the time when the plaintiff was shot was engaged in keeping the plaintiff off the lands of the defendant, the petition did not show that the servant was acting in the course of the servant's employment and in the prosecution of the master's business, and thus did not set out a cause of action. Ford v. Mitchell, 50 Ga. App. 617, 179 S.E. 215 (1935).

Hospitals and then Hospitals are liable for the liable for the negligence of its nurses in performing mere administrative or clerical acts, which acts, though constituting a part of a patient's prescribed medical treatment, do not require the application of the specialized technique or the understanding of a skilled physician or surgeon. Porter v. Patterson, 107 Ga. App. 64, 129 S.E.2d 70 (1962).

Hospital has a responsibility for the exercise of due care by a nurse (as well as by other hospital employees) while she is performing acts of a character which, though constituting a part of the patient's treatment as prescribed by the attending physician, do not require either the application or the understanding of the specialized technique possessed by a skilled physician or surgeon. Porter v. Patterson, 107 Ga. App. 64, 129 S.E.2d 70 (1962).

Whether an act is merely administrative, so that negligence in its performance is imputed to the hospital, or nonadministrative depends on the nature or character of the act. Porter v. Patterson, 107 Ga. App. 64, 129 S.E.2d 70 (1962).

Hospital was not liable for nurse's conduct in injecting certain patients with lethal doses of potassium chloride in order to "put them out of their misery," when, although the nurse may have been advancing the hospital's interests in giving authorized injections of potassium chloride, the nurse clearly abandoned the hospital's interest and pursued only the nurses's own when she gave lethal, unauthorized injections. Lucas v. Hospital Auth., 193 Ga. App. 595, 388 S.E.2d 871 (1989).

Hotels.

- Proprietor of a hotel is liable for an assault and battery committed by the proprietor's manager on a guest. Hooks v. Sanford, 29 Ga. App. 640, 116 S.E. 221 (1923).

Like other masters, a hotel proprietor or innkeeper is liable for the torts of his servant committed in the performance of the duties the servant is employed to discharge and that could be reasonably expected of him in the prosecution of the proprietor's business. Newton v. Candace, 94 Ga. App. 385, 94 S.E.2d 739 (1956).

When although there was a conflict in the evidence, there was some evidence supporting the contention of the plaintiff patron, that, when the plaintiff politely requested of the defendant hotel proprietor's clerk that the clerk arrange credit for the plaintiff's spouse at another hotel, the clerk without provocation committed a violent assault upon the plaintiff, thereby personally injuring and humiliating the plaintiff, it was error to grant a nonsuit on the assumption that the clerk when making the attack was not acting within the scope of the clerk's employment or in the prosecution of the hotel proprietor's business. Newton v. Candace, 94 Ga. App. 385, 94 S.E.2d 739 (1956).

It is within the scope of a hotel clerk's employment, when representing the proprietor of the establishment, to courteously reply to polite requests of the patron for accommodations of a lawful and moral nature irrespective of whether the clerk or the hostelry is under any duty or can reasonably be expected to grant such requests. Newton v. Candace, 94 Ga. App. 385, 94 S.E.2d 739 (1956).

Industrial manufacturer.

- When the defendant loaned two of the defendant's employees to the injured person to help with the person's contract to repair blowpipes for the defendant, and it became necessary for employees to help injured prepare a piece of railroad iron to use in repairing the blowpipes, and employees' negligence caused the iron to slip and crush the injured person's hand, the injured person could recover from the defendant because the injured person had the right to put special servants at any task properly converted into the job. Bibb Mfg. Co. v. Souther, 52 Ga. App. 722, 184 S.E. 421 (1936).

Insurance companies.

- When the designated examiner of the defendant insurance company directed defendant A to employ defendant B, a doctor, to remove the heart of the deceased husband of the plaintiff and deliver it to another doctor for the purpose of dissection, without the knowledge or consent of the plaintiff, and that the second doctor did dissect the said heart, and that the insurance company ratified the acts of A and B by paying the two doctors for their services, but the insurance company did not have any knowledge of the act of A or B, or received or retained any benefit therefrom, and since defendant A is joined with defendant B and the insurance company as joint tort-feasors in an action for damages on account of the alleged unauthorized removal and mutilation of the heart, a cause of action as to the acts of A and B, against the defendant insurance company under any theory of agency or of ratification of an unauthorized act did not exist. Liberty Mut. Ins. Co. v. Lipscomb, 56 Ga. App. 15, 192 S.E. 56 (1937).

Function of a designated examiner for an insurance company is to examine living persons, and such examiner has no authority, merely by virtue of such agency, to dissect or cause to be dissected a dead body; and its act is directing another to employ a doctor for that purpose, without specific instructions from the principal, will not be binding on the principal. Liberty Mut. Ins. Co. v. Lipscomb, 56 Ga. App. 15, 192 S.E. 56 (1937).

Land clearing business.

- When the record shows without substantial dispute that the defendant was not in the land clearing business but was having the defendant's own land cleared; that the defendant was to pay a lump sum calculated at the rate of $125 per acre for each acre cleared; that the profits or losses belonged solely to the third party and that the third party furnished the party's own equipment and tools; that the defendant did not share in any of the expenses for supplies or repairs; nor did the defendant pay any employees, the third party was an independent contractor and not a servant of the defendant. Pippin v. Bryan, 149 Ga. App. 193, 253 S.E.2d 855 (1979).

Lifeguard.

- Jury could have found that the efforts, allegedly negligent, of the lifeguard to revive the injured person were within the general scope of the lifeguard's employment, and thus would bind the employer under the principles embodied in this section. Knowles v. La Rue, 102 Ga. App. 350, 116 S.E.2d 248 (1960).

Newspaper carrier.

- Evidence demanded the finding that the newscarrier whose act was alleged to have been the cause of the plaintiff's injuries was an independent contractor, and the trial court did not err in directing a verdict for defendant company. Morris v. Constitution Publishing Co., 84 Ga. App. 816, 67 S.E.2d 407 (1951).

Parking attendant.

- Parking attendant's altercation with the plaintiff and her boyfriend appeared to have been purely personal and not for any purpose beneficial to the attendant's employer. Worstell Parking, Inc. v. Aisida, 212 Ga. App. 605, 442 S.E.2d 469 (1994).

Property management.

- Petition alleging that the plaintiff was maliciously shot and injured by the janitor of an apartment house while the plaintiff was present in the house as a guest of a tenant, the janitor, within the knowledge of the defendants, (security deed holder and managing agents) being a man of vicious and dangerous character, having a propensity to assault and injure others without cause, and that the defendants were negligent in retaining the janitor as such employee after knowledge of this trait, is sufficient to state a cause of action against the defendants. Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 193 S.E. 347 (1937).

Telegraph company.

- When an agent of a telegraph company is a party to a fraudulent scheme, by sending over the wires of the company false, fraudulent, and fictitious messages, which are intended to and do deceive the addressee, to the addressee's damage, the telegraph company is liable therefor. Jenkins v. Cobb, 47 Ga. App. 456, 170 S.E. 698 (1933).

When, to facilitate discharge of duties of servant employed by telegraph company to collect telegraphic messages and bring them to the company, it is essential that the servant ride a bicycle, and when the servant, in order to have the bicycle repaired, is authorized by the employer to go to a repair shop for that purpose, injury to a pedestrian occasioned on the return trip, when the servant negligently runs into a pedestrian on the street is proximately caused by the negligence of the telegraph company through its servant and agent. Marsh v. Postal Telegraph-Cable Co., 55 Ga. App. 57, 189 S.E. 550 (1936).

Telephone company.

- When the employee raped victim while reestablishing her telephone service the alleged rape was not related to the defendant's employment and did not further the employer's business. It was a purely personal act for which the employer cannot be deemed vicariously liable. Mountain v. Southern Bell Tel. & Tel. Co., 205 Ga. App. 119, 421 S.E.2d 284 (1992).

Theaters.

- Petition alleging that the manager of the theater was guilty of willful and malicious conduct (commission of acts of sodomy) resulting in injury to the minor plaintiff, failed to state a cause of action against the defendant theater company because it appeared from the allegations thereof that the manager's acts were perpetrated solely for the manager's personal gratification, and no facts were alleged such as would constitute actual notice to the master sufficient to raise a duty as to it to protect its invitees from such acts, to put it on notice or inquiry as to the criminal propensities of its employee, or to put the employer on notice so that its retention of the employee in its service would constitute negligence. Community Theatres Co. v. Bentley, 88 Ga. App. 303, 76 S.E.2d 632 (1953).

OPINIONS OF THE ATTORNEY GENERAL

"Servant" means employee as well as domestic servant. 1958-59 Op. Att'y Gen. p. 390.

Master not liable when servant steps aside from master's business.

- If a servant steps aside from the master's business, for however short a time, to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not liable; the test is not that the act of the servant was done during the existence of the employment, that is to say, during the time covered by the employment, but whether it was done in the prosecution of the master's business. 1958-59 Op. Att'y Gen. p. 390.

Distinguishing independent contractor from servant.

- True test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. 1958-59 Op. Att'y Gen. p. 390.

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Husband and Wife, § 192 et seq. 59 Am. Jur. 2d, Parent and Child, § 88 et seq. 74 Am. Jur. 2d, Torts, § 55 et seq.

Parent's Failure to Supervise Children, 11 POF2d 541.

Parental Failure to Control Child, 45 POF2d 549.

Complicity Rule in Motor Vehicle Accident Cases: Employer's Authorization or Ratification of Driver's Conduct, 19 POF3d 437.

C.J.S.

- 67A C.J.S., Parent and Child, § 329 et seq.

ALR.

- Automobiles: liability of parent for injury to child's guest by negligent operation of car, 2 A.L.R. 900; 88 A.L.R. 590.

Liability of employer for acts of janitor, 8 A.L.R. 1458.

Liability of parent for injury inflicted by minor child with dangerous instrumentality left accessible to him, 12 A.L.R. 812.

Liability of wife for husband's torts, 12 A.L.R. 1459.

Liability of master for damage to person or property due to servant's smoking, 13 A.L.R. 997; 31 A.L.R. 294.

Liability of master for injury to one whom servant, in violation of instructions, permits to ride on vehicle, 14 A.L.R. 145; 62 A.L.R. 1167; 74 A.L.R. 163.

Statutory liability of stockholder for tort of corporation, 14 A.L.R. 267.

Liability of employer for injuries inflicted by automobile while being driven by or for salesman or collector, 17 A.L.R. 621; 29 A.L.R. 470; 54 A.L.R. 627; 107 A.L.R. 419.

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 husband for independent tort of wife, 20 A.L.R. 528; 27 A.L.R. 1218; 59 A.L.R. 1468.

Judgment for or against master in action for servant's tort as bar to action against servant, 31 A.L.R. 194.

Liability of master for damages to third person from wanton or willful act of servant directed against master, 40 A.L.R. 207.

Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891.

Liability of owner for negligence of one permitted by the former's servant, or member of his family, to drive automobile, 44 A.L.R. 1382; 54 A.L.R. 851; 98 A.L.R. 1043; 134 A.L.R. 974.

Owner's liability for injury by automobile while being used by a servant for his own pleasure or business, 45 A.L.R. 477.

Liability for injury to or by one operating motor vehicle while under the age prescribed by law, 46 A.L.R. 1067.

Liability of principal for amount of fraudulent excess collection by agent, 46 A.L.R. 1212.

Liability of bank in respect to funds of third persons misappropriated by bank officer or employee and used to cover his own overdraft or defalcation, 48 A.L.R. 464.

Responsibility of mail contractor to third person for negligence or other misconduct of an employee, 51 A.L.R. 198.

Liability of private employer of police officer for latter's negligence or other misconduct, 55 A.L.R. 1197.

Liability for negligence of intoxicated partner or servant, 55 A.L.R. 1225.

Negligence of one spouse as imputable to other because of the marital relationship itself, 59 A.L.R. 153; 110 A.L.R. 1099.

Liability for injury caused by window washer, 61 A.L.R. 356.

Liability of one who leaves building materials accessible to children for injury to third person by child's act, 62 A.L.R. 833.

Liability of bank to holder of certificate of deposit fraudulently issued by a bank officer or employee in its name, 63 A.L.R. 991.

Liability of owner under "family-purpose" doctrine, for injuries by automobile while being used by member of his family, 64 A.L.R. 844; 88 A.L.R. 601; 100 A.L.R. 1021; 132 A.L.R. 981.

Liability of infant in tort for inducing contract by misrepresenting his age, 67 A.L.R. 1264.

Ownership of automobile as prima facie evidence of responsibility for negligence of person operating it, 74 A.L.R. 951; 96 A.L.R. 634.

Liability of master for injury inflicted by servant with firearms, 75 A.L.R. 1176.

Necessity of verdict against servant or agent as condition of verdict against master or principal for tort of servant or agent, 78 A.L.R. 365.

Family purpose doctrine as applicable to instrumentality other than automobile, 79 A.L.R. 1161.

What amounts to gross negligence, recklessness, or the like, within statute limiting liability of owner or operator of automobile for injury to guest, 86 A.L.R. 1145.

Liability of telegraph company for punitive damages for wrongful or negligent acts of employees as regards messages, 89 A.L.R. 356.

Necessity of pleading family purpose doctrine and sufficiency and effect of pleading in that regard, 93 A.L.R. 991.

Right to join master and servant as defendants in action based on wrongful or negligent act of servant, where master's liability rests on doctrine of respondeat superior, 98 A.L.R. 1057; 59 A.L.R.2d 1066.

Liability of owner for negligence of one to whom car is loaned or hired, 100 A.L.R. 920; 168 A.L.R. 1364.

One in general employment of carrier as servant temporarily of shipper or consignee while aiding in loading or unloading or moving cars, as regards responsibility for his negligence, and vice versa, 102 A.L.R. 514.

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

Liability of bank for losses incurred on loans or investments made on recommendation of its officers or employees, 113 A.L.R. 246.

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, 116 A.L.R. 457; 83 A.L.R.2d 1282.

Prima facie case or presumption from registration of automobile in name of, or from proof of ownership by, defendant, as applicable to questions other than the master-servant relationship at time of accident, 122 A.L.R. 228.

Right to bring separate actions against master and servant, or principal and agent, to recover for negligence of servant or agent, where master's or principal's only responsibility is derivative, 135 A.L.R. 271.

Identity of master, as regards rule of respondeat superior, of one loaned or hired out by general employer in connection with WPA or other similar governmental project, 136 A.L.R. 525.

Criminal responsibility of one authorized generally to sell intoxicating liquors for particular illegal sale thereof by employee or agent, 139 A.L.R. 306.

What amounts to ratification by principal or master of libel or slander by agent or servant, 139 A.L.R. 1066.

Variance between allegation and proof as regards identity of servant or agent for whose acts defendant is sought to be held responsible, 139 A.L.R. 1152.

Rule respondeat superior as applicable to negligent act of employee done within scope of the employment, where injury was the result of a personal collision or accident of a similar nature, 141 A.L.R. 683.

Amount of recovery in tort action against servant or other person who was the active tort-feasor as limit of amount recoverable against one responsible only derivatively, 141 A.L.R. 1168.

Homework by employee as affecting employer's responsibility for injury to third person due to employee's negligence while on way to or from home, 146 A.L.R. 1193.

Scope and application of exceptions as regards carrying passengers in policies of automobile insurance, 147 A.L.R. 632.

Owner's statutory liability for negligent operation of automobile where he has consented to use by another and car is being driven by a third person, 147 A.L.R. 875.

Owner's presence in automobile operated by another as affecting former's right or liability, 147 A.L.R. 960.

Liability for injury or damages resulting from traffic accident on highway involving vehicle in military service, 147 A.L.R. 1431.

Liability of master or principal for servant's or agent's libel or slander of one other than servant or agent or former servant or agent, 150 A.L.R. 1338.

Liability of owner of automobile for negligence while it is being operated by another with his consent as affected by immunity of the operator (or his employer) from liability or action, 152 A.L.R. 1058.

Liability for injury to person or damage to property as result of "blackout," 155 A.L.R. 1458; 158 A.L.R. 1463.

Master's liability for injury of one servant by another in enforcing discipline, 156 A.L.R. 640.

Automobile owner's common-law liability for negligence in entrusting car to known incompetent, reckless, or inexperienced person as affected by statute limiting owner's liability to use within terms of consent, 163 A.L.R. 1418.

Master's liability for injuries to nonemployee caused by servant's negligence in use of instrumentality different from that authorized, 166 A.L.R. 877.

Liability of one spouse for tort of other in maintenance of household, 168 A.L.R. 937.

Employer's liability for assault by truck driver or chauffeur, 172 A.L.R. 532.

Liability of infant for injuries inflicted at play, 173 A.L.R. 890.

Necessity of pleading that tort was committed by servant, in action against master, 4 A.L.R.2d 292.

Overcoming inference or presumption of driver's agency for owner, or latter's consent to operation, of automobile, 5 A.L.R.2d 196.

Defenses of fellow servant and assumption of risk in actions involving injury or death of member of airplane crew, ground crew, or mechanic, 13 A.L.R.2d 1137.

Tort liability of master for theft by servant, 15 A.L.R.2d 829; 39 A.L.R.4th 543.

Liability under respondeat superior doctrine for acts of operator furnished with leased machine or motor vehicle, 17 A.L.R.2d 1388.

Acts of employee, in procuring warrant or aiding prosecution, as within scope of employment so as to render employer liable for malicious prosecution, 18 A.L.R.2d 402.

Liability of employer for injury resulting from games or other recreational or social activities, 18 A.L.R.2d 1372.

Liability for assault by employee in collecting debt, 22 A.L.R.2d 1227.

Employer's liability for negligence of an assistant procured or permitted by his employee without authority, 25 A.L.R.2d 984.

Construction and effect of statutes which make parent, custodian, or other person signing minor's application for vehicle operator's license liable for licensee's negligence or willful misconduct, 26 A.L.R.2d 1320.

Liability of employer, other than carrier, for a personal assault upon customer, patron, or other invitee, 34 A.L.R.2d 372.

Liability for injury to hand in vehicle door, 34 A.L.R.2d 1172.

Liability of insurance company for negligent operation of automobile by insurance agent or broker, 36 A.L.R.2d 261.

Employer's liability for negligence of employee in piloting his own airplane in employer's business, 46 A.L.R.2d 1050.

Liability for injury or damage resulting from fire started by use of blowtorch, 49 A.L.R.2d 368.

Owner's presence in motor vehicle operated by another as affecting owner's rights or liability, 50 A.L.R.2d 1281.

Employer's liability for employee's negligence in operating employer's car in going to or from work or meals, 52 A.L.R.2d 350.

Route driver or salesman as independent contractor or employee of merchandise producer or processor, for purposes of respondeat superior doctrine, 53 A.L.R.2d 183.

Liability of employer for negligent operation of motor vehicle by automobile salesman, 53 A.L.R.2d 631.

Employer's liability for assault by taxicab or motorbus driver, 53 A.L.R.2d 720.

Liability of insurance company for libel or slander by its agents or employees, 55 A.L.R.2d 828.

Right to join master and servant as defendants in tort action based on respondeat superior, 59 A.L.R.2d 1066.

Sleeping-car company's liability for employee's assault upon passenger, 60 A.L.R.2d 1115.

Liability of proprietor of store, office, or similar business premises for injury from fall due to presence of obstacle placed or dropped on floor, 61 A.L.R.2d 110.

Liability of proprietor of store, office, or similar business premises for injury from fall due to presence of litter or debris on stairway, 61 A.L.R.2d 174.

Liability of proprietor of store, office, or similar business premises for injury from fall due to presence of obstacle placed or dropped on steps, 61 A.L.R.2d 205.

Liability of municipality for torts in connection with airport, 66 A.L.R.2d 634.

Liability of person permitting child to have gun, or leaving gun accessible to child, for injury inflicted by the latter, 68 A.L.R.2d 782.

Liability of hospital or sanitarium for negligence of physician or surgeon, 69 A.L.R.2d 305.

Hospital's liability as to diagnosis and care of patients brought to emergency ward, 72 A.L.R.2d 396.

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

House-to-house salesman or canvasser as independent contractor or employee, for purposes of respondeat superior, 98 A.L.R.2d 335.

Liability of employer for injury to wife or child of employee through latter's negligence, 1 A.L.R.3d 677.

Right of employer sued for tort of employee to implead the latter, 5 A.L.R.3d 871.

Validity and construction of statutes making parents liable for torts committed by their minor children, 8 A.L.R.3d 612.

Owning, leasing, or otherwise engaging in business of furnishing services for taxicabs as basis of tort liability for acts of taxi driver under respondeat superior doctrine, 8 A.L.R.3d 818.

Modern status of family purpose doctrine with respect to motor vehicles, 8 A.L.R.3d 1191.

Liability of operating surgeon for negligence of nurse, assisting him, 12 A.L.R.3d 1017.

Employer's liability to employee for malpractice of physician supplied by employer, 16 A.L.R.3d 564.

Master's liability for injury to or death of person, or damage to property, resulting from fire allegedly caused by servant's smoking, 20 A.L.R.3d 893.

Liability of owner or operator of power lawnmower for injuries resulting to third person from its operation, 25 A.L.R.3d 1314.

Admissibility and probative value of admissions of fault by agent on issue of principal's secondary liability, where both are sued, 27 A.L.R.3d 966.

Liability of hospital for negligence of nurse assisting operating surgeon, 29 A.L.R.3d 1065.

Intoxicating liquors: right of one liable under civil damage act to contribution or indemnity from intoxicated person, or vice versa, 31 A.L.R.3d 438.

Liability of labor union or its membership for torts committed by officers, members, pickets, or others, in connection with lawful primary labor activities, 36 A.L.R.3d 405.

Liability of one contracting for private police security service for acts of personnel supplied, 38 A.L.R.3d 1332.

Insurer's tort liability for acts of adjuster seeking to obtain settlement or release, 39 A.L.R.3d 739.

Liability for negligence of doorman or similar attendant in parking patron's automobile, 41 A.L.R.3d 1055.

Subrogation of employer's liability insurer to employer's right of indemnity against negligent employee, 53 A.L.R.3d 631.

Liability for injury to or death of passenger from accident due to physical condition of carrier's employee, 53 A.L.R.3d 669.

Employer's liability for action of trustees or similar body administering employer's pension plan, 54 A.L.R.3d 189.

Parents' liability for injury or damage intentionally inflicted by minor child, 54 A.L.R.3d 974.

Newspaper boy or other news carrier as independent contractor or employee for purposes of respondeat superior, 55 A.L.R.3d 1216.

Liability of hospital, other than mental institution, for suicide of patient, 60 A.L.R.3d 880.

Liability of parent for injury caused by child riding a bicycle, 70 A.L.R.3d 611.

Liability of one hiring private investigator or detective for tortious acts committed in course of investigation, 73 A.L.R.3d 1175.

When is employer chargeable with negligence in hiring careless, reckless, or incompetent independent contractor, 78 A.L.R.3d 910.

Vicarious liability of private franchisor, 81 A.L.R.3d 764.

Student-driver's negligence as imputable to teacher-passenger, 90 A.L.R.3d 1329.

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

Liability of one who sells gun to child for injury to third party, 4 A.L.R.4th 331.

Liability of governmental unit or its officers for injury to innocent occupant of moving vehicle, or for damage to such vehicle, as result of police chase, 4 A.L.R.4th 865.

Criminal responsibility of parent for act of child, 12 A.L.R.4th 673.

Fact that passenger in vehicle is owner as affecting right to recover from driver for injuries to, or death of, passenger incurred in consequence of driver's negligence, 21 A.L.R.4th 459.

Liability of donor of motor vehicle for injuries resulting from owner's operation, 22 A.L.R.4th 738.

Release of, or covenant not to sue, one primarily liable for tort, but expressly reserving rights against one secondarily liable, as bar to recovery against latter, 24 A.L.R.4th 547.

Modern trends as to tort liability of child of tender years, 27 A.L.R.4th 15.

Fact that passenger in negligently operated motor vehicle is owner as affecting passenger's liability to or rights against third person--modern cases, 37 A.L.R.4th 565.

Insurer's tort liability for wrongful or negligent issuance of life policy, 37 A.L.R.4th 972.

Liability of bank or safe-deposit company for its employee's theft or misappropriation of contents of safe-deposit box, 39 A.L.R.4th 543.

Construction and effect of statutes which make parent, custodian, or other person signing minor's application for vehicle operator's license liable for licensee's negligence or willful misconduct, 45 A.L.R.4th 87.

Liability of hospital or sanitarium for negligence of physician or surgeon, 51 A.L.R.4th 235.

Liability, under statute, of labor union or its membership for torts committed in connection with primary labor activities--state cases, 85 A.L.R.4th 979.

Liability of church or religious society for sexual misconduct of clergy, 5 A.L.R.5th 530.

Employer's liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer, 13 A.L.R.5th 217.

Liability of municipal corporation for negligent performance of building inspector's duties, 24 A.L.R.5th 200.

Employer's liability for negligence of employee in driving his or her own automobile, 27 A.L.R.5th 174.

Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 A.L.R.5th 535.

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