Quillian, Judge.
1. This court’s judgment in American Oil Co. v. McCluskey, 118 Ga. App. 123, supra, having been reversed by the Supreme Court, McCluskey v. American Oil Co., 225 Ga. 63, supra, the judgment is vacated.
2. The defendant contends the trial judge erred in overruling the motion for judgment notwithstanding the verdict, motion for summary judgment, motion for directed verdict and motion for new trial on the general grounds. The defendant insists that the evidence in support of the summary judgment and submitted upon the trial did not authorize the finding that the plaintiff was entitled to recover damages of the defendant for the death of her son, an employee of the defendant, whose death was alleged to have resulted from the negligent act of a fellow servant. The fellow-servant rule was not invoked as a defense, obviously because the deceased was only twelve years old, and the doctrine was not applicable. Union Cotton Mills v. Harris, 144 Ga. 716 (2a) (87 SE 1029).
The defendant insists that the evidence failed to establish liability on its part because, according to the proof submitted: (a) acts of the defendant’s servant, which caused the fatal injury to the deceased, were not committed while in the prosecution of the defendant’s business, but occurred when the servant had stepped aside from his employment and was engaged in acts wholly personal to himself; (b) the defendant did not have knowledge prior to the tragic event that its servant, whose alleged negligence caused the injury fatal to the deceased, carried the pistol when engaged in the duties of his employment or that he drank intoxicating liquors; (c) the deceased’s death resulted from a sheer accident. We have examined each of these contentions in the light of the evidence adduced upon the trial.
(a) The defendant’s invocation of the time-honored rule that where a servant departs or steps aside from his employment and commits an act entirely personal to him, his master is not responsible for the consequences of such an action raises a grave question. See in this connection American Security Co. v. Cook, 49 Ga. App. 723 (176 SE 798). The evidence was that the de[477]*477fendant’s servant, Mr. Disharoon, carried the pistol from which the fatal shot was fired for the dual purpose of defending himself and protecting certain money and other property entrusted to his care by the defendant. He related instances which appeared to make the possession of the pistol expedient in carrying out the purpose of his employment. He denied he had ever been instructed not to carry the pistol, and testified that on one occasion while he and his superior, or supervisor, were together in a motel while engaged in the defendant’s service, his superior saw him remove the pistol from his suitcase. Hence, his superior had knowledge that he carried the same while performing the duties of his employment. The witness further testified that he brought the pistol into the service station where the deceased was shot for the purpose of cleaning the weapon. The cleaning of the pistol was incidental to, and a part of, the act of carrying it. Employers Liability Assur. Corp. v. Henderson, 37 Ga. App. 238 (3) (139 SE 688).
The act of a servant may be within the scope of his employment, though not done at the master’s direction, or with his permission and even if his master does not know the act is being committed. The test is whether the act is done by the servant in connection with the master’s business and for the purpose of promoting the master’s interest. It is not necessary that the thing done be wise or even beneficial to the master, provided the servant’s purpose is to benefit the master. “The crime committed by the servant was in his injudicious attempt to execute this lawful authority in an unlawful manner. It was the means adopted by the servant for the purpose of performing the authorized work of the master. The civil liability of the master is not affected in such a case by the fact that the servant has rendered himself criminally liable. If the criminal act of the servant was done within the range of his employment and for the purpose of accomplishing the authorized business of the master, the latter is liable.” Southern R. Co. v. James, 118 Ga. 340, 344 (45 SE 303, 63 LRA 257).
In Fielder v. Davison, 139 Ga. 509, 511 (77 SE 618), it is held: “Omitting the fellow-servant doctrine, the general rule is that a master is liable for the tort of his servant, whether negli-
[478]*478gent or voluntary, if done by his command or in the prosecution and scope of his business. Civil Code, § 4413. The 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 him with the expectation that he will commit a negligent or wilful 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. Savannah Electric Co. v. Wheeler, 128 Ga. 550, 553, et seq. (58 SE 38, 10 LRA 1176).”
The principle is splendidly treated in the text of 35 AmJur 987, Master and Servant, § 553. “A servant is acting within the scope of his employment when he is engaged in doing for his master what he has been directed to do, or, as it has been said, ‘any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act, or a natural, direct, and logical result of it’ is within the meaning of the phrase ‘scope of employment.’ The test is the nature of the tortious act and its relation or nonrelation to that which the actor was employed to do. If the employee, being engaged about the business of the employer, adopts methods which he deems necessary, expedient, or convenient, and the methods adopted prove hurtful to others, the employer may be held liable. The purpose of the employee’s act, rather than the method of performance thereof, is said to be the important consideration. Liability on the part of the employer is not limited to the employee’s acts which promote the objects of the employment, the general idea being that in order to fix liability on the employer, the employee at the time of doing the wrongful act must have been acting in behalf of the employer, and not on his own account.”
The wise pronouncement of Prince v. Brickell, 87 Ga. App. 697, 700 (75 SE2d 288) is: “Nor does it matter that the killing of the plaintiff’s husband was not beneficial to the defendant. . . . And, ‘If the criminal act of the servant was done within the range of his employment and for the purpose of accomplishing the authorized business of the master, the latter is liable.’ ” [479]*479Also refer to the case of Frazier v. Southern R. Co., 200 Ga. 590, 594 (37 SE2d 774).
So regardless of whether the servant, Mr. Disharoon, carried the pistol without the defendant’s knowledge and without any direction or permission to carry it, his carrying and cleaning the weapon must be held to be within the scope of his employment.
Moreover, according to Mr. Disharoon’s testimony, which was undisputed, knowledge of his superior employee concerning the practice of carrying the pistol was chargeable to the defendant. In this connection refer to 35 AmJur 559, Master and Servant, § 129, and p. 447, § 4. Also Hale v. Depaoli, 33 Cal. 2d 228 (201 P2d 1, 13 ALR2d 183). This is under a doctrine similar to those applicable to principal and agent.
Free access — add to your briefcase to read the full text and ask questions with AI
Quillian, Judge.
1. This court’s judgment in American Oil Co. v. McCluskey, 118 Ga. App. 123, supra, having been reversed by the Supreme Court, McCluskey v. American Oil Co., 225 Ga. 63, supra, the judgment is vacated.
2. The defendant contends the trial judge erred in overruling the motion for judgment notwithstanding the verdict, motion for summary judgment, motion for directed verdict and motion for new trial on the general grounds. The defendant insists that the evidence in support of the summary judgment and submitted upon the trial did not authorize the finding that the plaintiff was entitled to recover damages of the defendant for the death of her son, an employee of the defendant, whose death was alleged to have resulted from the negligent act of a fellow servant. The fellow-servant rule was not invoked as a defense, obviously because the deceased was only twelve years old, and the doctrine was not applicable. Union Cotton Mills v. Harris, 144 Ga. 716 (2a) (87 SE 1029).
The defendant insists that the evidence failed to establish liability on its part because, according to the proof submitted: (a) acts of the defendant’s servant, which caused the fatal injury to the deceased, were not committed while in the prosecution of the defendant’s business, but occurred when the servant had stepped aside from his employment and was engaged in acts wholly personal to himself; (b) the defendant did not have knowledge prior to the tragic event that its servant, whose alleged negligence caused the injury fatal to the deceased, carried the pistol when engaged in the duties of his employment or that he drank intoxicating liquors; (c) the deceased’s death resulted from a sheer accident. We have examined each of these contentions in the light of the evidence adduced upon the trial.
(a) The defendant’s invocation of the time-honored rule that where a servant departs or steps aside from his employment and commits an act entirely personal to him, his master is not responsible for the consequences of such an action raises a grave question. See in this connection American Security Co. v. Cook, 49 Ga. App. 723 (176 SE 798). The evidence was that the de[477]*477fendant’s servant, Mr. Disharoon, carried the pistol from which the fatal shot was fired for the dual purpose of defending himself and protecting certain money and other property entrusted to his care by the defendant. He related instances which appeared to make the possession of the pistol expedient in carrying out the purpose of his employment. He denied he had ever been instructed not to carry the pistol, and testified that on one occasion while he and his superior, or supervisor, were together in a motel while engaged in the defendant’s service, his superior saw him remove the pistol from his suitcase. Hence, his superior had knowledge that he carried the same while performing the duties of his employment. The witness further testified that he brought the pistol into the service station where the deceased was shot for the purpose of cleaning the weapon. The cleaning of the pistol was incidental to, and a part of, the act of carrying it. Employers Liability Assur. Corp. v. Henderson, 37 Ga. App. 238 (3) (139 SE 688).
The act of a servant may be within the scope of his employment, though not done at the master’s direction, or with his permission and even if his master does not know the act is being committed. The test is whether the act is done by the servant in connection with the master’s business and for the purpose of promoting the master’s interest. It is not necessary that the thing done be wise or even beneficial to the master, provided the servant’s purpose is to benefit the master. “The crime committed by the servant was in his injudicious attempt to execute this lawful authority in an unlawful manner. It was the means adopted by the servant for the purpose of performing the authorized work of the master. The civil liability of the master is not affected in such a case by the fact that the servant has rendered himself criminally liable. If the criminal act of the servant was done within the range of his employment and for the purpose of accomplishing the authorized business of the master, the latter is liable.” Southern R. Co. v. James, 118 Ga. 340, 344 (45 SE 303, 63 LRA 257).
In Fielder v. Davison, 139 Ga. 509, 511 (77 SE 618), it is held: “Omitting the fellow-servant doctrine, the general rule is that a master is liable for the tort of his servant, whether negli-
[478]*478gent or voluntary, if done by his command or in the prosecution and scope of his business. Civil Code, § 4413. The 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 him with the expectation that he will commit a negligent or wilful 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. Savannah Electric Co. v. Wheeler, 128 Ga. 550, 553, et seq. (58 SE 38, 10 LRA 1176).”
The principle is splendidly treated in the text of 35 AmJur 987, Master and Servant, § 553. “A servant is acting within the scope of his employment when he is engaged in doing for his master what he has been directed to do, or, as it has been said, ‘any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act, or a natural, direct, and logical result of it’ is within the meaning of the phrase ‘scope of employment.’ The test is the nature of the tortious act and its relation or nonrelation to that which the actor was employed to do. If the employee, being engaged about the business of the employer, adopts methods which he deems necessary, expedient, or convenient, and the methods adopted prove hurtful to others, the employer may be held liable. The purpose of the employee’s act, rather than the method of performance thereof, is said to be the important consideration. Liability on the part of the employer is not limited to the employee’s acts which promote the objects of the employment, the general idea being that in order to fix liability on the employer, the employee at the time of doing the wrongful act must have been acting in behalf of the employer, and not on his own account.”
The wise pronouncement of Prince v. Brickell, 87 Ga. App. 697, 700 (75 SE2d 288) is: “Nor does it matter that the killing of the plaintiff’s husband was not beneficial to the defendant. . . . And, ‘If the criminal act of the servant was done within the range of his employment and for the purpose of accomplishing the authorized business of the master, the latter is liable.’ ” [479]*479Also refer to the case of Frazier v. Southern R. Co., 200 Ga. 590, 594 (37 SE2d 774).
So regardless of whether the servant, Mr. Disharoon, carried the pistol without the defendant’s knowledge and without any direction or permission to carry it, his carrying and cleaning the weapon must be held to be within the scope of his employment.
Moreover, according to Mr. Disharoon’s testimony, which was undisputed, knowledge of his superior employee concerning the practice of carrying the pistol was chargeable to the defendant. In this connection refer to 35 AmJur 559, Master and Servant, § 129, and p. 447, § 4. Also Hale v. Depaoli, 33 Cal. 2d 228 (201 P2d 1, 13 ALR2d 183). This is under a doctrine similar to those applicable to principal and agent. This court held in Prince v. Brickell, 87 Ga. App. 697, 700, supra, there is no difference in applying the rule relative to respondeat superior in cases of master and servant and cases of principal and agent. Both hinge upon the knowledge imputable to the master or principal. Where the master, as in the present case, had knowledge that a servant pursues a given course of conduct and takes no steps to prevent such conduct, he is liable for its consequences. The holding of Atlantic C. L. R. Co. v. McLeod, 9 Ga. App. 13 (5) (70 SE 214), is authority for this view.
Central of Ga. R. Co. v. Mobley, 6 Ga. App. 33 (4) (64 SE 300), holds: “A corporation knows of the violation of its rules and acquiesces therein whenever the particular agent of the corporation, who is charged with the enforcement of the rule in question, knows of its violation and acquiesces therein. The knowledge of the agent is the knowledge of the corporation; and though it is the duty of the inferior agent, charged with the enforcement of a rule, to inform his superior thereof, a breach of this duty can not affect the rights arising from his knowledge that the rule is being violated.” While the last case cited refers specifically to the consequence of the master acquiescing in the violation of rules made to regulate the conduct of servants, the principle there pronounced is equally applicable, where as here the master is charged with knowledge that a ser[480]*480vant carries a deadly weapon while performing the duties of his employment and interposes no objection to such conduct.
(b) As noted above there was sufficient evidence that the defendant had imputed to it knowledge that its servant, Mr. Disharoon, carried the pistol when engaged in performing the duties of his employment and there was evidence from which it could be fairly inferred that the defendant was likewise put on notice that he drank intoxicating liquors. But it was not essential to the plaintiff’s right of recovery that there be proof of either of these facts. American Security Co. v. Cook, 49 Ga. App. 723, 724, supra.
(c) The evidence does not authorize the conclusion, as the defendant contends, that the occurrence resulting in the death of the plaintiff’s son was an accident. The evidence showed without dispute that Mr. Disharoon carried the pistol into the service station for the purpose of cleaning it. There, in the presence of the deceased, he handled the gun, shifting it from one position to another about his person, without unloading it or applying its safety device designed to prevent accidental firing or even placing its firing pin upon an empty cylinder. That such misconduct was' negligent and caused the pistol to fire when dropped, is apparent, especially in view of the strong proof that while engaged in handling the weapon he was intoxicated. The conclusion is inescapable that the death of the plaintiff’s son was not attributable to an accident, but directly resulted from the above stated acts of negligence.
3. An enumeration of error alleges the trial judge erred in overruling a timely motion to exclude from evidence pictures of the deceased. According to previous rulings of this court this was not error. Western & A. R. v. Reed, 35 Ga. App. 538, 548 (134 SE 134); Cagle Poultry &c. Co. v. Busick, 110 Ga. App. 551 (1) (139 SE2d 461).
4. The remaining enumerations of error are without merit.
The trial judge did not err in denying the defendant’s motion for summary judgment (see Hill v. Willis, 224 Ga. 263, 267 (161 SE2d 281)), motion for directed verdict and subsequent motion for judgment notwithstanding the verdict, and motion for new trial.
[481]*481
Judgment affirmed.
Bell, P. J., Jordan, P. J., Hall, Pannell and Deen, JJ., concur.
Felton, C. J., Eberhardt and Whitman, JJ., dissent.