Bacon v. News-Press & Gazette Co., 373 S.E.2d 797 (Ga. Ct. App. 1988). · Go Syfert
Bacon v. News-Press & Gazette Co., 373 S.E.2d 797 (Ga. Ct. App. 1988). Cases Citing This Book View Copy Cite
32 citation events (15 in the last 25 years) across 3 distinct courts.
Strongest positive: GEORGIA MESSENGER SERVICE, INC. v. Bradley (gactapp, 2011-07-12)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) GEORGIA MESSENGER SERVICE, INC. v. Bradley
Ga. Ct. App. · 2011 · confidence medium
Hiller Co. of Ga., 214 Ga. App. 448, 448 (1) ( 448 SE2d 46 ) (1994) (holding that “[t]he law provides that the master is liable for the wilful torts of his 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” (citation and punctuation omitted)); Smith v. Myrick, 205 Ga. App. 339, 340 (1) ( 422 SE2d 236 ) (1992) (same). 20 See, e.g., Brown v. AMF Bowling Centers, 236 Ga. App. 277, 278 (1) ( 511 SE2d 619 ) (1999) (holding that employer wa…
discussed Cited as authority (rule) Leo v. Waffle House, Inc.
Ga. Ct. App. · 2009 · confidence medium
See also Moore v. Service Merchandise Co., 200 Ga. App. 463, 464 ( 408 SE2d 480 ) (1991) (“[t]he doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury”) (citations and punctuation omitted; emphasis in original). 8 (Punctuation omitted.) Shell Oil Co., 205 Ga. App. at 369 (2). 9 (Punctua…
discussed Cited as authority (rule) Palladino v. Piedmont Hospital, Inc.
Ga. Ct. App. · 2002 · confidence medium
Co., 200 Ga. 590, 594 (2) ( 37 SE2d 774 ) (1946). 5 Reynolds v. L & L Mgmt., 228 Ga. App. 611, 612-613 (1) ( 492 SE2d 347 ) (1997). 6 Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704 ( 373 SE2d 797 ) (1988). 7 See id. 8 Reynolds, supra; Bacon, supra; see Odom v. Hubeny, Inc., 179 Ga. App. 250, 251 (1) ( 345 SE2d 886 ) (1986) (“ ‘The 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 not be an employee, is too fine-spun a distinction.’ [Cit.]”). 9 See Reynolds, supra. 10 Id.; Bacon, supra. 11 Id. …
cited Cited as authority (rule) Howard v. JH Harvey Co., Inc.
Ga. Ct. App. · 1999 · confidence medium
Co., 188 Ga. App. 703, 705 ( 373 SE2d 797 ) (1988).
cited Cited as authority (rule) Beverly v. J. H. Harvey Co.
Ga. Ct. App. · 1999 · confidence medium
Co., 188 Ga. App. 703, 705 ( 373 SE2d 797 ) (1988).
discussed Cited as authority (rule) Brown v. AMF Bowling Centers, Inc.
Ga. Ct. App. · 1999 · confidence medium
See, e.g., New Madison South, L.P. v. Gardner, 231 Ga. App. 732 (1); Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704 ( 373 SE2d 797 ) (1988); Evans v. Caldwell, 52 Ga. App. 475, 478 (2) ( 184 SE 440 ) (1936).
discussed Cited as authority (rule) Randall Memorial Mortuary, Inc. v. O'Quinn
Ga. Ct. App. · 1992 · confidence medium
Despite Harden’s contention that he was on a strictly personal mission to save the employee’s job, the evidence showed that the employee was needed at the funeral home for a scheduled work shift and that Harden, as the supervisor who had responsibility over employees, endeavored to se *544 cure the needed staff for the funeral home through the use of a company vehicle. “ ‘ “[T]he presence of (a personal) motive or purpose in the servant’s mind does not affect the master’s liability, where that which the servant does is in the line of his duty and in the prosecution of the master�…
examined Cited "see" New Madison South Ltd. Partnership v. Gardner (4×)
Ga. Ct. App. · 1998 · signal: see · confidence high
See Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704 ( 373 SE2d 797 ) (1988) (simple presence of a personal motive does not exonerate the employer if the servant is acting in the line of his duty and the prosecution of his master’s work). 6 Id. at 705 . 7 (Citations and punctuation omitted.) Smith v. Myrick, 205 Ga. App. 339, 340 ( 422 SE2d 236 ) (1992). 8 (Citations and punctuation omitted.) Id. 9 Jump v. Anderson, 58 Ga. App. 126, 128 ( 197 SE 644 ) (1938); Southern Bell Tel. &c.
discussed Cited "see" Reynolds v. L & L MANAGEMENT, INC. (2×)
Ga. Ct. App. · 1997 · signal: see · confidence high
See Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704 ( 373 SE2d 797 ) (1988).
discussed Cited "see, e.g." John O'Shea v. Anthony J. Welch, and American Drug Stores, Inc., Doing Business as Osco Drug, Farmers Insurance Company, Inc., Defendant-Intervenor (2×)
10th Cir. · 2003 · signal: see also · confidence low
Id. (internal quotations and citations omitted); see also Bacon v. News-Press & Gazette Co., 188 Ga.App. 703 , 373 S.E.2d 797, 799 (1988) (quoting Jump v. Anderson, 58 Ga. App. 126 , 197 S.E. 644 (1938)) (“[WJhether or not the servant at the time of an injury to another was acting ... in the scope of his employment is for determination by the jury, except in plain and indisputable cases.”).
discussed Cited "see, e.g." O'Shea v. Welch
10th Cir. · 2003 · signal: see also · confidence medium
Id. (internal quotations and citations omitted); see also Bacon v. News-Press & Gazette Co., 373 S.E.2d 797, 799 (Ga. Ct. App. 1988) (quoting Jump v. Anderson, 197 S.E. 644 (Ga. Ct. App. 1938) (“[W]hether or not the servant at the time of an injury to another was acting . . . in the scope of his employment is for determination by the jury, except in plain and indisputable cases.”).
examined Cited "see, e.g." Piedmont Hospital, Inc. v. Palladino (4×)
Ga. · 2003 · signal: see also · confidence medium
See also Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704-705 ( 373 SE2d 797 ) (1988).
Retrieving the full opinion text from the archive…
Bacon
v.
News-Press & Gazette Company
76718.
Court of Appeals of Georgia.
Sep 9, 1988.
373 S.E.2d 797
1988 Ga. App. LEXIS 1177
Joseph B. Bergen, Frederick S. Bergen, for appellant., Dana F. Braun, Shari M. Sigman, for appellee.
Sognier, Deen, Birdsong, Banke, Carley, Pope, Benham, Beasley, Been, McMurray.
Cited by 14 opinions  |  Published

Lead Opinion

Sognier, Judge.

Earl Bacon brought suit against News-Press & Gazette Company, d/b/a WSAV-TV, seeking to hold the television station liable under the doctrine of respondeat superior for damages he suffered as the result of an altercation between him and two employees of the television station, Michelle Mears and Daryl Holder. WSAV moved for summary judgment as to its liability for Holder’s actions; the existence of questions of fact regarding its liability for the actions taken by Mears was conceded. The trial court granted the motion for summary judgment in favor of the television station and Bacon appeals.

The record reveals that Holder, a photographer and camera man for appellee, visited the scene of a fire at Consolidated Container Corporation, recorded the fire, then returned subsequently with Mears, a television reporter for appellee, so that she could complete the coverage of the news story. Mears and Holder obtained permission from a police officer to enter the property and were proceeding thereon when[*704] Holder, at Mears’ request, left to get a sweater for her from her vehicle. During his absence, Mears encountered appellant, an employee at Consolidated Container. Mears asserted in her deposition that appellant, who did not identify himself or his position to her, first shouted obscenities at her then pushed and shoved her back repeatedly although she had identified herself and her job to him and told him she had the police officer’s permission to be on the property. Mears stated she struck appellant with her hand after he had shoved her about five times, at which point she noticed a second man with a sawed-off shotgun aiming the weapon at her head. Holder, by deposition, stated that as he was returning with the sweater, he heard Mears screaming his name for help. Upon arriving at the scene, he observed Mears being manhandled by one individual (later identified as appellant) while a second man loaded and pointed a double-barrel shotgun at her. Holder drew the pistol he was carrying and ordered the men to stop; the police arrived at the scene within moments and escorted Mears and Holder away. In sharp contrast to this evidence, appellant stated in his deposition that after Mears deliberately disregarded his warnings and requests to leave the property, he stood in front of her and held out his arms to stop her from trespassing, but that she persisted in trying to get around him and subsequently slapped him without provocation. According to appellant, Mears then turned and ran away but Holder, who had just arrived on the scene, put a pistol in appellant’s face and screamed obscenities at him. The evidence is uncontroverted that appellant did not confront Mears for personal reasons but did so to prevent her from accessing the fire scene, where she was going in order to obtain her news story.

“The question whether or not the servant at the time of an injury to another was acting in the prosecution of his master’s business and in the scope of his employment is for determination by the jury, except in plain and indisputable cases.” Jump v. Anderson, 58 Ga. App. 126, 128 (197 SE 644) (1938). We agree with appellant that questions of fact are raised by the evidence of record whether Holder’s action was “entirely disconnected from” the business of appellee, his employer, see Jump, supra, or whether it was an attempt on Holder’s part to prevent appellant from thwarting Mears’ pursuit of the news story, so as to constitute an act in furtherance of the business of appellee. See generally Lewis v. Millwood, 112 Ga. App. 459, 460 (145 SE2d 602) (1965). The fact that Holder’s action may have been mingled with personal motives or purposes does not automatically entitle appellee to summary judgment, since “ ‘the presence of [a personal] motive or purpose in the servant’s mind does not affect the master’s liability, where that which the servant does is in the line of his duty and in the prosecution of the master’s work.’ It was at least a jury question as to whether or not there was a deviation, and, if so,[*705] whether the deviation was so slight as not to affect the master’s responsibility for the servant’s act.” Jump, supra at 129.

Appellee argues that the existence of a station policy forbidding employees from carrying weapons on assignment (a policy of which Mears testified she had never been advised) relieves it of liability for Holder’s alleged tortious behavior. “ ‘However, so long as the servant is acting within the scope of his employment, the [employer] is liable, though the negligent act was not necessary to the performance of his duties, or though it was not expressly authorized or known to the employer, or was contrary to his instructions. ... If the act is within the class [of activities performed on behalf of the employer], the master is bound, although the servant is forbidden to perform the particular act. If not within the class, the master is not bound.’ [Cit.]” (Emphasis supplied.) Evans v. Caldwell, 52 Ga. App. 475, 478 (184 SE 440) (1936), aff’d 184 Ga. 203 (190 SE 582) (1937). The existence of questions of fact regarding whether Holder’s act was in prosecution of his employment thus renders inappropriate the grant of summary judgment in favor of appellee on the basis of the asserted station policy. Finally, we note that, in view of evidence indicating Holder’s action was in response to a situation in which Mears was being physically assaulted by appellant while another man was pointing a double-barrel shotgun at her, there is a question of fact whether Holder’s action constituted the type of “independent voluntary act” required to exempt an employer from liability for the tortious acts of its servant. See Broome v. Primrose Tapestry Mills, 59 Ga. App. 70, 74 (200 SE 506) (1938); Jump, supra at 128.

Accordingly, in the absence of plain and indisputable facts, the trial court’s grant of summary judgment in favor of appellee must be reversed. See generally Odom v. Hubeny, Inc., 179 Ga. App. 250, 251-252 (1) (345 SE2d 886) (1986).

Judgment reversed.

Birdsong, C. J., Banke, P. J., Carley, Pope, Benham, and Beasley, JJ., concur. Been, P. J., and McMurray, P. J., dissent.

Dissent

Deen, Presiding Judge,

dissenting.

“Under the theory of respondeat superior, an employer is liable for a tort committed by his employee only where the injury is inflicted in the course of the employment and not because of some private and personal act of the employee. [Cits.]” Odom v. Hubeny, 179 Ga. App. 250, 251 (345 SE2d 886) (1986); OCGA § 51-2-2, generally. “The mere fact that the assault occurred during a time of ostensible employment ... is not dispositive on the question of scope of employment. [Cit.]” Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (307 SE2d 129) (1983). In this case, it was not a situation where an employee carried out his employer’s business overzealously,[*706] but rather one where the employee acted out of “private and personal” concern for the safety of his friend/co-worker. Bacon’s deposition testimony failed to contradict Holder’s testimony that clearly indicated he acted out of this concern to rescue Mears, and not out of concern to cover a news story. The trial court thus properly granted partial summary judgment for WSAV-TV, and I must respectfully dissent from the majority opinion’s contrary conclusion.

Decided September 9, 1988 Rehearing denied October 6, 1988 Joseph B. Bergen, Frederick S. Bergen, for appellant. Dana F. Braun, Shari M. Sigman, for appellee.

I am authorized to state that Presiding Judge McMurray joins in this dissent.