Smith v. Colonial Stores Inc.

33 S.E.2d 360, 72 Ga. App. 186, 1945 Ga. App. LEXIS 544

Opinions

1. The court did not err in directing the verdict.

2. The facts did not show jurisdiction in the State Board of Workmen's Compensation.

DECIDED FEBRUARY 13, 1945. REHEARING DENIED MARCH 16, 1945. R. M. Smith, as next friend of his minor son, Robert Smith, brought suit against Colonial Stores Inc. The petition alleged that the defendant operated a retail grocery store, including a meat market, known as "Big Star Super Market," in the City of Brunswick, Glynn County, Georgia, and that Robert Smith was an employee in the grocery department; that J. L. Ship was the general and acting manager of the store, with Tom Wrench and P. A. Clay employed by the defendant as managers of different departments in the store; that Robert Smith was sixteen years of age, which fact was known by the said agents of the defendant; that on or about March 1, 1943, the defendant's agents and employees, under the conditions alleged, committed the following acts: "6th. That said Robert Smith, on or about said date and in defendant's said place of business was peaceably engaged in the performance of his regular work in the storehouse of said building and at said time was packing and unpacking groceries, produce, and other commodities sold in said retail establishment; that, without reason, excuse, or occasion, defendant, acting by and through its said agents, Tom Wrench and P. A. Clay, at the direct command of said defendant acting by and through its acting general manager, J. L. Ship, to `beat hell out of him, Robert Smith,' made an assault upon the said Robert Smith and administered such a beating over his head and body, that when turned loose after said assault, the said Robert Smith dropped limp and unconscious to the floor of said building, where he lay bruised, lacerated, contused, and bloody from the effects of said unjust, unprovoked, and uncalled-for assault; that several minutes elapsed before the said Robert Smith regained consciousness and made further feeble efforts to protect himself from the deadly assault made upon him by defendant acting by and through its said agents; and that, in order to prevent further serious damage to the said Robert Smith, friends intervened and escorted him from said building. 7th. Petitioner shows that the felonious assault made as aforesaid was done at the instance, with the approval, and under the direct orders and instructions of defendant's said agents, as aforesaid. 8th. Petitioner shows that the said Robert Smith was immediately thereafter discharged by the said J. L. Ship, acting general manager of defendant's place of business, and that the acts and conduct of defendant's said agent, as aforesaid, in making said felonious assault on said minor, with a full knowledge in its possession, were ratified and approved by defendant when defendant discharged said minor. 9th. Petitioner shows that the said Robert Smith suffered indescribable pains both during and after said unprovoked assault, an irremovable stigma was placed upon his name and character by defendant's said conduct, and that, because of said assault, the said Robert Smith will continue to suffer for years to come." After praying for process the defendant further prayed: "That exemplary or punitive judgment be rendered against defendant and in favor of petitioner in the amount of $5000."

The defendant, before pleading to the merits, filed the following demurrer: "1. That the said petition does not show any cause of action. 2. That under the facts as alleged in the plaintiff's petition the plaintiff is not entitled to recover in the amount sued for or in any amount. 3. That the defendant having elected to come under the workmen's compensation act of this State the plaintiff is legally obligated to pursue whatever remedy he has under that act before the Industrial Commission of the State of Georgia and therefore can not legally institute this suit." The demurrer was overruled. Exceptions pendente lite were filed. But no error is assigned in this court on the judgment overruling the demurrer.

The defendant filed an answer, denying the allegations of the petition as above set forth, and further pleaded: "3. And further answering this defendant states that said Robert Smith and Tom Wrench did have a fight in said defendant's store, but the said altercation was a personal matter between said Smith and Wrench as Smith had cursed Wrench and was endeavoring to commit an assault upon him when said Wrench struck said Smith in defense of his person. The said fight was not the result of a collusion between said employees of said defendant, and was not done under the command or acquiescence of said manager of said defendant, and the said Wrench was not acting in the scope of his employment relative to this altercation. 4. Defendant further shows that under the facts herein alleged and inasmuch as said defendant having elected to come under the workmen's compensation act of the State of Georgia the plaintiff should pursue whatever remedy he might have before the Industrial Commission of the State of Georgia rather than by this suit."

The case proceeded to trial on the merits, and the evidence adduced was substantially as follows: It was agreed, without proof, that the defendant was operating under the provisions of the workmen's compensation act of Georgia at the time the alleged cause of action arose. It was further agreed that the plaintiff did not admit, but denied, that the alleged cause of action came within the provisions of the workmen's compensation act. The plaintiff testified substantially: That about the first of March he was working for the defendant in its place of business and had been for about four weeks; that he was sixteen years of age; that his age was known to the defendant; that he was employed to put up stock and do general work around the grocery store; that he worked in the stock room and in the front; that at this time Mr. Ship was general manager of the whole store; that Tom Wrench worked in the meat department; that the plaintiff had trouble with Tom Wrench, who was working for the defendant at the time the plaintiff was employed and at the time of the difficulty, and was still working there; that P. A. Clay was the produce manager at the defendant's store; that "it all started on Friday before that Monday. Friday night, one of the negro porters in there cursed me, and after we all got off and went outside the store I asked him what he meant cursing me, and he sorter bowed up and got mad about it. I didn't hit the negro or put my hand on him, and didn't draw my knife, because I didn't have a knife at that time, and Mr. Wrench and Mr. Collins came out there and said that if I hit the negro I would have to hit them first, that if I hit the negro they would hit me, and I told them if that was the way they felt I wouldn't back down from them either, that I didn't come there for no trouble, that I just wanted to get it straight, and that ended that, and I didn't say anything more to Tom Wrench until Monday; there were two girls there in the back drinking a cocacola and Mr. Wrench come up, and I don't remember exactly what he was saying to them, but I told him to go on and let the girls alone. On Friday night Wrench told me that if I ever spoke to him or had anything to do with him that he was going to beat hell out of me, and when I told him to go on and let the girls alone, he said, `Smith, I told you if you spoke to me I would beat hell out of you,' and then he turned and went to the office to see Mr. Ship. Mr. Ship was just upstairs from where we were talking, and he went up there, and I don't know what he said to him. I didn't hear the conversation between Wrench and Ship, but Wrench left the office where Mr. Ship was and came back down, and that time I had my knife open opening some sugar, and he came up to me and said, `If you will put up that knife I will beat hell out of you,' and I put the knife in my pocket, and he run into me and got me down like this and hit me in the face three times with his fist, and when some of them told him that I was a minor he turned me loose and run back in the meat department, and of course I fell to the floor, and when one of the boys picked me up I went on into the meat department, but I didn't see Mr. Wrench in there, and about that time Mr. Ship called me up in the office and fired me, and then I left. I did not know anything for a few minutes after he hit me; he busted my nose and knocked me out, blooded me up quite a bit. I don't know just who all was present at that time. I know my cousin was there, but he is not with them any more, he is with the marines, he kept two more of them back from me. They were trying to get in there to me too, but he kept them back. Mr. Ship is the man that fired me — said he couldn't keep me there on account of the trouble we had. So far as I know Mr. Wrench is still working there. He continued to work there after I left. I did not give Tom Wrench any reason or excuse to hit and beat me in the manner in which he did. I only told him to go on and let the girls alone." On cross-examination he testified substantially that he did not know what the conversation was between Wrench, his assailant, and Mr. Ship; that Mr. Ship was upstairs at the time the fight took place; that the fight took place downstairs. He denied having "run off the colored employees" of the defendant, but stated that he did have trouble with one of them.

The father of the plaintiff testified in behalf of the plaintiff substantially as follows: That he was at work the day his son had the trouble at the defendant's place of business; that upon returning home his wife informed him of the occurrence and he went to the defendant's store to investigate it; that while he was talking with Wrench concerning the difficulty between Wrench and his son, and after he had stated to Wrench that he would get a warrant against him for hitting a minor, Mr. Ship, the manager, came up and remarked in effect that he did not intend to have any trouble in the store, and that he would "beat hell out of" him, whereupon he remarked to Mr. Ship that he didn't know whether or not he was man enough; that he walked out of the store to the edge of the pavement and at that time the "whole business of them were coming out," and he and a party who went into the store with him turned and walked away; that he procured a warrant against Wrench for hitting his minor child who was seventeen on March 21, 1943; that he did not see any blood on his son's clothing, but did not know whether he had changed clothes or not; that he still traded at the defendant's place of business, and that Mr. Wrench was still employed there; that personally he did not know anything about the difficulty nor what took place. These were the only witnesses sworn for the plaintiff, and that is substantially the testimony produced on his behalf.

The defendant introduced R. E. Collins, who testified that he was manager of the defendant's meat market, and that Tom Wrench worked under him in the meat-market department; that both had been employed in those capacities for a number of years; that about eight o'clock on Friday night preceding the difficulty between Tom Wrench and the plaintiff, he had closed the market, and he and Mr. Clay had walked out of the store and were waiting for Mr. Ship, the manager, to close the store; that as they walked out they observed that the plaintiff had one of the negro porters in the collar, and had a knife in his right hand, and was cursing the porter and telling him he would cut his throat. About that time Tom Wrench and the witness began talking to the plaintiff, asking him to leave the porter alone — he had run off three porters the same week — he kept trying to persuade the plaintiff to leave the porter alone. The plaintiff pulled off his coat. The witness and Clay and Wrench kept on trying to console him. He pulled off his coat two or three times, and pulled his hat off and started cursing "us for negro-loving sons of bitches." The negroes were afraid to leave the store and Mr. Ship took them home. Porters were very hard to get and they did not want them run off. "You can't run a grocery business very well without them." The next morning the porters were about an hour late arriving, and gave as their reason that they took a circuitous route, in order to avoid the plaintiff. When the plaintiff came in Saturday morning the witness spoke to him and he replied: "You negro-loving son of a bitch." The witness testified that throughout the day the plaintiff continued to remark that he was "going to get them sons of bitches," that those remarks were directed at the witness and Tom Wrench; that he refused to have anything further to do with the plaintiff; that he was in the office and in the presence of manager Ship when Mr. Wrench told Ship that the plaintiff was cursing him and that something had to be done about it. In reply Mr. Ship told Wrench to go on back down, "I do not have anything to do with it; it is your boys' affair." Wrench went downstairs while the witness remained with Mr. Ship for a few minutes. As the witness got downstairs he heard Wrench ask the plaintiff if he would apologize, and he did not hear what Smith said. He testified that the plaintiff had a knife in his hand while Wrench was talking to him; that Wrench told him if he would put away the knife he had that Wrench would get on him; that the plaintiff put up the knife and Wrench slapped him; that Wrench got the plaintiff's head under his arm and hit him two or three times and remarked that the plaintiff wouldn't fight. The witness testified that the boy was not hurt; that there was no skin broken and no blood; that after this difficulty the plaintiff obtained a coca-cola bottle, which was taken away from him, and he then procured a broom and tried to get behind the meat-market counter in pursuit of Wrench; that the broom was taken away from him by some of the boys in the store; and that he was using profanity and obscene language of the vilest kind. On cross-examination the witness denied that he had encouraged or aided the fight between Smith and Wrench in any way; that Wrench was still working with the company and had been for many years; that only he had the authority to fire Wrench, and that he did not intend to fire him because he was not at fault; that he felt like Wrench was trying to protect the business. The witness stated that he had informed all of the employees that they would have to be on their own; that it was unnecessary for the plaintiff to have a knife in his work; that the company furnished openers.

J. L. Ship, the acting manager for the defendant, testified substantially that Mr. Tom Wrench came into the office upstairs from downstairs and informed him that he had been cursed by the plaintiff in front of some girls, and that he was tired of it; that in substance he informed Wrench that he knew how hard help was to get, that they were really up against it, and that he and the plaintiff would have to work out their differences between themselves; that he did not know that they were going to have a fight; that he heard a disturbance, and went out of the office and saw Mr. Wrench opening the door to the market, and that the plaintiff was behind him with a coca-cola bottle in his hand; that Mr. Collins, of the produce department, took the bottle away from him; that after it was over he called the plaintiff into the office and let him go. He testified that as manager he had the plaintiff in the office the day before and talked with him because he had run off three porters; that the Friday night before he was making threats to kill the negroes and the witness had to carry the negroes home; that they claimed to be afraid of the plaintiff; that he asked the plaintiff not to run off the negroes; that the plaintiff had been carrying a large knife in a holster, and the witness had forbidden him to carry an open knife in the store; that he did not want the customers to see him with a knife like that; that he let the plaintiff go after he had told him that it looked like he just wouldn't get along there; that he had never told Mr. Wrench to have a fight with anyone; that the witness had been working for the defendant for eleven years. He further testified that he had warned the plaintiff twice about the language he had been using in the store, and that so far as he knew and saw the plaintiff was in the wrong; that he knew both sides; that the defendant knew that the plaintiff was running off the negro porters and cursing and making threats in the store and should have been fired, but he did not have anyone to take his place and felt that it could be smoothed out as had been done on other occasions. He did not have any authority to fire Mr. Wrench, as he was in another department.

Tom Wrench, sworn for the defendant, testified substantially as follows: He related the facts substantially as set forth above in the testimony of Collins, and further testified that while he was inside the market working, an employee in the store (not the plaintiff) called him to a place in the store where two girls were drinking coca-colas; that the plaintiff was near; that the witness made the remark to the party who called him as to where the coca-colas came from, whereupon the plaintiff remarked that it was none of the witness's business, and the witness went upstairs to the manager's office and told the manager (Ship) that he or the plaintiff would have to leave; that that was the third time the plaintiff had cursed him and the manager remarked, "That is between you all, I ain't got nothing to do with it;" then it was that he went downstairs where he found the plaintiff opening a sack with a knife in his hand and asked him to apologize "for cursing him," that the witness had backed off two or three times already but that he was "not scared," whereupon the plaintiff remarked, "You haven't got guts enough to do anything." The witness testified that he told the plaintiff to close up the knife, which he did, and he slapped him. The other direct testimony of the witness, as well as that brought out on the cross-examination, is substantially the same as that of the other witness for the defendant. Mr. P. A. Clay was sworn as a witness for the defendant. His testimony was substantially the same as that already given by the other witnesses for the defendant. 1. We have given the pleadings and the evidence somewhat in detail for the reason that the only assignment of error here is on the judgment directing a verdict for the defendant. We have studied the record carefully. It would not sustain a verdict for the plaintiff on either theory: (a) "At the instance, with the approval, and under the direct orders and instructions of defendant's agents," as the plaintiff alleged in paragraph 7, based on the Code, § 105-108; or (b) a ratification as provided in the Code, § 105-109. Section 105-108 reads: "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 shall be by negligence or voluntary." Section 105-109 reads: "By ratification of a tort committed for one's benefit, the ratifier becomes liable as if he had commanded it; otherwise, if the act was done for the benefit of a third person." (a) As to the first theory, the plaintiff himself testified that he did not know what the conversation was between the manager (Ship) and the employee (Wrench), who hit him, and there is no evidence in the record sufficient to make a jury issue of this question. On the contrary, not only the manager of the defendant's store (Ship) testified that the difficulty did not occur at his instance or procurement or command, but he testified most positively that it did not, so also did the other witnesses for the defendant, Collins and Wrench, who heard the conversation between Wrench and Ship, testify that Wrench did not strike the plaintiff at the instance, procurement, or command of the manager or any other agent of the defendant. The whole evidence reveals no circumstances which would justify a jury in finding that the plaintiff was struck at the instance, procurement, or command of the defendant. The whole evidence reveals that it was purely a personal matter between Tom Wrench and the plaintiff, and the evidence preponderates to the side that as a personal matter between Wrench and the plaintiff, the plaintiff was at fault. (b) But it is contended by the plaintiff that it was a jury question as to whether the conduct of the company in discharging the plaintiff and retaining Wrench amounted to a ratification of the alleged tortious act which Wrench committed against the plaintiff. Again, we are forced to look to the whole evidence to see whether this contention is sound. As we stated above, in our view the matter was purely personal between Wrench and the plaintiff, with the plaintiff being in the wrong. When we view the conduct of the plaintiff from his own testimony, he, upon invitation, because of previous difficulties, put up his knife and engaged in a mutual fisticuff. The evidence shows further that during the few weeks of his employment he had been a disturbing factor (his own evidence partially proves this). The other employees of the defendant who testified, had been in the defendant's employment from seven to eleven years. Under these circumstances, particularly as related by the manager Ship, the defendant was perfectly justified, as we see it, in discharging the plaintiff and retaining Wrench. The act of doing so does not, under any view of the record, raise an issue of ratification to submit to the jury. Therefore it follows that the court did not err in directing a verdict.

2. Before pleading to the merits of the case, the defendant filed a demurrer to the effect that the allegations of the petition showed that if any cause of action existed in favor of the plaintiff, exclusive jurisdiction vested in the State Board of Workmen's Compensation and not in the superior court, under the provisions of the workmen's compensation act. The court overruled the demurrer. The plaintiff's bill of exceptions to this court recites that the defendant filed exceptions pendente lite to this judgment of the trial court in overruling the demurrer; but the defendant assigns no error in this court on the overruling of its demurrer. Therefore it follows that this court is without authority to review the judgment on the demurrer.

After the case had closed for the introduction of evidence, the defendant made a motion for a directed verdict on two grounds: (a) that the evidence failed to show that the alter ego of the company had anything to do with the difficulty between Wrench and Smith; and (b) that the defendant came under the provisions of the workmen's compensation act, and therefore the superior court was without original jurisdiction to pass upon the plaintiff's case, if any he had. We have already observed that the evidence is insufficient as a matter of law to sustain a verdict against the defendant. This conclusion, it seems, would terminate this case. But since able counsel for both parties argue the question of jurisdiction under the evidence (counsel for the plaintiff in error arguing that it does not show jurisdiction in the State Board of Workmen's Compensation, and counsel for the defendant contending that if the plaintiff has any cause of action the jurisdiction to determine the matter vested exclusively in the State Board of Workmen's Compensation), we will comment on the question for what it may be worth. In our view of the case the evidence in no wise shows that the incident arose out of and during the course of the employment. It is true that Wrench and the plaintiff were coemployees of the defendant, but the incident between them so far as the evidence discloses, did not arise out of and during the course of and within the scope of their employment in a sense to make such incident an "accident" within the meaning of the workmen's compensation act. This court very clearly covered such a situation as here made by the evidence in Keen v. NewAmsterdam Casualty Co., 34 Ga. App. 257, 259 (129 S.E. 174), as follows: "The rule would be and has been held to be different, under a variety of circumstances, where the assault upon the claimant was not incident to but was altogether casual to the employment, and did not have its origin in and naturally flow from the conduct of the business, or where, although the assault did originate in the course of the business, it was directed against the employer or a coemployee, and the claimant was not himself subjected to the risk as a natural incident to his presence and employment." If the evidence had measured up to and sustained the allegations of the petition, a different question might have been presented.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.

ON MOTION FOR REHEARING. The plaintiff filed a motion for rehearing and quoted from the opinion as follows: "The whole evidence reveals no circumstance which would justify a jury in finding that the plaintiff was struck at the instance, procurement, or command of the defendant." It is stated that this excerpt represents the controlling factor in the affirmance of the case. It does. It is contended that in this excerpt and in no part of the opinion did the court take into consideration the following evidence of the plaintiff, Robert Smith: "I heard Tom Wrench [defendant's agent who made the actual physical assault] testify in the justice's court in the hearing touching this case, and he said Mr. Ship [acting manager] told him to go back down there and straighten it out and beat hell out of me." The plaintiff states: "Assuming that the statement in question was made by the defendant's agent, such a statement within itself would have justified and authorized a jury in finding that the witness Tom Wrench was acting under instructions and in the interest of his employer." It is contended that Wrench denied so testifying in the justice's court. Let us analyze this contention of the plaintiff in this motion for rehearing. Let us assume that the case had been submitted to a jury. On this particular point the jury could only have impeached Wrench by believing the plaintiff's statement as to what Wrench testified in the justice's court. In such event we would then have the jury considering what the plaintiff Smith said that Wrench said that manager Ship said. This would be purely hearsay, without probative value, and insufficient as a matter of law on which to base a verdict against the defendant. Therefore the motion for rehearing is denied.