Davies v. Hearn
| Decision Date | 11 May 1932 |
| Docket Number | 21838. |
| Citation | 164 S.E. 273,45 Ga.App. 276 |
| Parties | DAVIES v. HEARN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Evidence authorized finding that plaintiff was injured by defendant's truck driven by defendant's employee.
Evidence demanded finding that defendant's truck driver, who struck plaintiff while returning home, where he habitually kept truck overnight, was using truck within course of employment, notwithstanding truck driver had previously deviated to get, and was accompanied by, wife and child.
Where evidence on issue demanded finding for successful party errors in charge with respect to issue were harmless.
In automobile accident case, where identity of driver striking plaintiff was disputed, plaintiff's attorney's statement before jury, in answer to question regarding admissibility of indictment, that it was adjudication that defendant's agent struck plaintiff, held not to require mistrial (Civ. Code 1910, § 4957).
1. The evidence authorized the finding that the plaintiff was injured by a truck belonging to the defendant and driven by a person employed by the defendant to operate it. There was no error in the charge of the court, nor in any ruling in the admission of evidence, in regard to this issue.
2. The evidence demanded the finding that the driver was using the truck within the course of his employment as a servant of the defendant at the time the plaintiff was injured. It follows that any errors in the charge of the court with respect to this issue were harmless and immaterial.
3. Under the facts appearing the trial judge did not abuse his discretion in refusing to declare a mistrial because of a certain statement made by counsel for the plaintiff in the presence of the jury. The evidence authorized the verdict for the plaintiff, and there was no error in refusing a new trial.
Error from City Court of Bainbridge; H. B. Spooner, Judge.
Suit by E. M. Hearn against T. N. Davies. Judgment for plaintiff defendant's motion for a new trial was overruled, and defendant brings error.
Affirmed.
W. V Custer & Son, of Bainbridge, for plaintiff in error.
J. C Hale, of Bainbridge, for defendant in error.
E. M. Hearn brought suit against T. M. Davies to recover damages for personal injuries inflicted upon him by a motortruck alleged to have been driven by Will Walker as a servant and employee of the defendant. The trial resulted in a verdict for the plaintiff, and the defendant excepted to the overruling of his motion for a new trial.
In the brief filed for the defendant in this court, two contentions are made under the general grounds of the motion for a new trial: (1) That the evidence failed to identify the vehicle which struck the plaintiff or to show who was the driver thereof; (2) that, even if the vehicle and the driver were identified as the automobile and the employee of the defendant as alleged in the petition, it conclusively appears that such employee, Will Walker, was at the time using the automobile for his own private use and benefit, and was not acting within the scope of his employment as a servant of the defendant. Each of these two general questions was submitted to the jury as an issue of fact, and in the amendment to the motion for a new trial error is assigned upon certain charges and rulings relating to each of them.
It is our opinion that the evidence authorized the finding in favor of the plaintiff upon the first issue, and that the trial judge committed no error in any charge or ruling pertaining to it. As regards the second issue, we have reached the conclusion that, even though some of the instructions in reference thereto may have been erroneous, the evidence, contrary to the contention of the defendant, not only authorized but demanded the finding in favor of the plaintiff, and thus that any errors in the charge of the court were harmless. The case as presented here involves no question as to negligence, nor as to any other issue of fact except as just indicated.
The specific question raised under the second general contention as noted above is as to whether Will Walker, the regular driver of the vehicle, was acting without the course of his employment and not in the service of the defendant, while using the car, as it appears he was doing, for the purpose of conveying his wife and child to his and their home at the time of the alleged injury, although after having gone, with the consent of the defendant, to the home of his father-in-law to get his wife and child, he had returned to the road over which he was accustomed to drive the defendant's automobile in the conduct of the defendant's business, and, with the exception of the fact that he was accompanied by his wife and child as passengers, he was using the automobile in the usual and ordinary manner, as approved by his employer.
1. The evidence developed the following facts: On a certain evening shortly after dark, the plaintiff was injured while walking from his home to the home of a neighbor situated upon a public highway running east from the town of Climax to the town of Whigham. He had about reached his destination and had left the traveled portion of the highway for the purpose of entering the premises of his neighbor at the time of the impact. He was well out of danger from ordinary traffic, being several feet from the traveled portion of the highway, and was struck by a motor vehicle which had left the public road and was encroaching upon the front yard of the home to which the plaintiff was going.
The defendant was engaged in the lumber business, owning a planing mill at Climax to which he supplied lumber from a point in or near the town of Whigham, by means of a truck which was constantly operated for this purpose upon the highway adjacent to which the plaintiff was injured. When used for this purpose, the truck was driven by a man named Will Walker, who resided upon the same highway some distance east of the place where the plaintiff was injured. The truck that injured the plaintiff was traveling in an easterly direction, and there was some evidence to show that the defendant's truck driven by Will Walker passed the scene of the accident going in this direction at about the time the plaintiff was injured. From this and various other circumstances disclosed by the evidence and tending to identification, the jury were authorized to find in favor of the plaintiff and against the defendant upon the issue as to the identity of the truck and of the driver. This is so clear from the evidence that we will enter upon no discussion with respect to this point. The court did not err in the admission of any evidence pertaining to this issue, nor were any of the instructions in relation thereto subject to the exceptions taken in the motion for a new trial.
2. Considering it as settled by the verdict that the plaintiff was injured by a truck belonging to the defendant and driven by his employee, Will Walker, we will now endeavor to show that the evidence demanded the finding that the truck was being operated by Walker within the scope of his...
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