Bailey v. Murray

• Decision Date: 18 June 1953
• Docket Number: No. 34689,No. 2,34689,2
• Citation: 77 S.E.2d 103,88 Ga.App. 491
• Parties: BAILEY v. MURRAY
• Court: Georgia Court of Appeals

Page 103

77 S.E.2d 103

88 Ga.App. 491

BAILEY v. MURRAY.

No. 34689.

Court of Appeals of Georgia, Division No. 2.

June 18, 1953.

Rehearing Denied July 2, 1953.

Syllabus by the Court.

It is error for the trial court to grant a nonsuit where, admitting all the facts proved and all reasonable deductions from them to be true, the plaintiff has established her case as laid, and at the same time has not disproved her right to recover by establishing the existence of other undisputed facts which show that she is not entitled to a verdict.

Mrs. Mary G. Bailey filed suit against J. M. Murray in the Superior Court of Fayette County, seeking to recover damages for personal injuries resulting when her automobile collided with a truck belonging to the defendant and driven by one of the defendant's employees. At the conclusion of the evidence the court granted a nonsuit, and the exception is to this judgment.

Irwin & Dyer, Osgood Williams, Atlanta, Lester C. Dickson, Fayetteville, for plaintiff in error.

Nall, Sterne & Miller, Atlanta, for defendant in error.

TOWNSEND, Judge.

The sole issue in this case is whether the court erred in granting a nonsuit on the theory that at the time of the injuries complained of the employee was upon his own personal business and was not acting within the scope of his employment. On considering whether the grant of a nonsuit is error, the evidence is construed in favor of the plaintiff; and, if the plaintiff makes out a prima facie case, and is sufficient with inferences fairly drawn therefrom, to support his position, such evidence, even though slight, is sufficient to take the case to a jury. Ellison v. Evans, 85 Ga.App. 292, 295, 69 S.E.2d 94; Brown v. Savannah Electric & Power Co., 46 Ga.App. 393, 395, 167 S.E. 773. The evidence is undisputed: that the driver of the truck, Napoleon Bracy, and three others, one of whom was Robert Rivers, were employed by the defendant on a piece-work basis to cut and haul timber over a fairly wide area in the vicinity of Jonesboro, Georgia; that the truck was ordinarily driven by one of these employees, who took it home at night, and in the morning picked up the other three and went to the place where the timber was to be cut (the defendant's contention being that only Rivers had authority to drive or keep the truck, while the plaintiff contended that all the employees, and especially Bracy, shared this authority); that three of the employees lived about three miles from Jonesboro, and the other, Rivers, lived within that town; that the place where the timber was to be cut that morning was eight or nine miles from Jonesboro, in an easterly or northeasterly direction; that Bracy had, on the previous Sunday night, driven the truck to Forest Park, Georgia, where he spent the night visiting friends, and that he started back to Jonesboro about 4:30 Monday morning for the purpose of picking up Rivers and the other employees and carrying them to where the timber was being cut; that the collision occurred on a curve just outside the city limits of Forest Park; and that it was due to Bracy's failure to have the truck under control, and resulted in the plaintiff's injuries.

The defendant testified that he had given Rivers permission to drive the truck; that he had not given Bracy such permission, and did not know that he drove it; that the men were their own bosses to a large extent, had no particular time to be at the woods, but commenced work from 5 to 8 a. m.; that they would usually go to work about 7, sometimes earlier. Bracy testified in part as follows: 'It was Mr. J. M. Murray's truck. He knew me and Robert and the others were driving this particular truck at various times. On the weekend before Mr. Murray let me have the truck at my house, until that Sunday evening I taken it up to Robert's house * * *. We went down to Mr. Murray's house the Saturday before that week-end, and we got some gas. He saw me driving the truck there at the time. He did not make any objections to my driving the truck, he never had. Robert had a truck, so I kept this particular truck that was involved in this accident more or as much as Robert did * * *. At the time I had this collision with Mrs. Bailey I was headed to pick up Robert and the other boys to go to work. * * * We did not have any certain time to load this pulpwood. We usually started early in the morning. As to whether there was any particular route we went over to pick up the boys to go to work in the woods, whether we would just go where we thought the route was more convenient to us, we would go the convenient way. There wasn't any particular route. [Mr. Murray] turned his truck over to another group of haulers and cutters on another truck. He came around and actually saw me driving the truck on the job. I disremember how many times, but he would come by right regularly and see me driving the truck. * * * He told me to use the truck in the morning, to pick up pulpwood cutters and bring them to work. That was the only way we had to get to work. Mr. Murray knowed the hauler, Robert Rivers, had rheumatism and couldn't drive the truck very well. As to whether I would go down to get the gas with Rivers at Mr. Murray's house, sometimes I would go with him, and sometimes he would go alone, and sometimes I would go alone. * * * We would pick everybody up the next Monday morning coming to work. I was actually doing that at the time I ran into Mrs. Bailey. I was on my way from my friend's house coming directly on to pick up the boys to go to work. * * * [Mr. Murray] had given Robert permission to let us use the truck. I was present when that was done, I was listening * * * Robert asked him when this conversation took place, Robert asked him just like on week-ends can we visit friends or go to a show for pleasure and he told him we could. * * * I was at Mr. Murray's house where I got the gas for the truck and Robert Rivers asked him in my presence if we could use the truck to go to a movie, and Mr. Murray sais, 'Yes, and go to see your friends and the movies, and not to frolic.' * * * Mr. Murray never complained whether I drove the truck or Robert, or the cutters, to my knowledge. He saw me fill the gas tank up in his yard and drive the truck away. I drove the truck to Mr. Murray's and got eggs, driving the truck.'

This testimony was corroborated by that of Robert Rivers, who testified in part: '[Mr. Murray] put gas in the truck at his pump when Napoleon was driving the truck. * * * We both worked on the same truck. He drove the truck sometimes and I would drive it sometimes. Mr. Murray knew he drove the truck, he had saw him drive it. Napoleon drove the truck in the woods where we were getting out pulpwood. Mr. Murray was with us all out there when he was driving the truck in the woods. * * * He would drive some and I would drive some. I was employed as head driver. He was helping me out some. I was sick at the time with the rheumatism.' He further testified: 'Mr. Murray permitted me to take his truck home with me at night. He always permitted me to take it, me sometimes and sometimes the rest of the boys would.' He testified...