Gallagher v. Gunn

• Decision Date: 29 July 1915
• Docket Number: 6132.
• Citation: 85 S.E. 930,16 Ga.App. 600
• Parties: GALLAGHER v. GUNN.
• Court: Georgia Court of Appeals

85 S.E. 930

16 Ga.App. 600

GALLAGHER v. GUNN.

No. 6132.

Court of Appeals of Georgia

July 29, 1915

Syllabus by the Court.

Where the plaintiff's evidence showed that the defendant was the owner of the automobile that injured him, and that the chauffeur operating the machine at the time of the injury was the defendant's servant, the presumption arose that the servant was engaged in the master's business and within the scope of his employment; and the burden was then upon the defendant to show that the machine was not his, or that the chauffeur was not his servant, or that the servant, at the time of the injury was not engaged in the prosecution of the defendant's business. Stewart v. Baruch, 103 N.Y.App.Div. 577, 93 N.Y.S. 161; Long v. Nute, 123 Mo.App. 204, 209, 210, 100 S.W. 511; Moon v. Matthews, 227 Pa. 488, 76 A. 219, 29 L.R.A. (N. S.) 856, 136 Am.St.Rep. 902; Fielder v. Davison, 139 Ga. 509, 77 S.E. 618.

While certain immaterial averments of the petition were not proved by the plaintiff's evidence, a prima facie case was made out, and the court erred in awarding a nonsuit.

Error from City Court of Macon; Robert Hodges, Judge.

Action by Thomas Gallagher against Will Gunn. Judgment for defendant, and plaintiff brings error. Reversed.

Robt. L. Berner, of Macon, for plaintiff in error.

W. D. McNeil, of Macon, for defendant in error.

BROYLES, J.

Judgment reversed.