Georgia Power Co. v. Rabun
| Decision Date | 26 January 1965 |
| Docket Number | No. 40934,No. 3,40934,3 |
| Citation | 140 S.E.2d 568,111 Ga.App. 63 |
| Parties | GEORGIA POWER COMPANY v. Patricia H. RABUN et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) One seeking to hold another liable for the acts of the latter's agent committed within the scope of the agent's authority may allege the agency simply by stating that the principal, acting through its named agent, did the acts in question. Such an allegation is sufficient to withstand a motion to dismiss in the nature of a general demurrer.
(b) If on the trial of the case it is shown that the driver operating the master's vehicle was in the master's employment at the time of injury, the presumption arises that the driver was engaged in the master's business and within the scope of his employment. The burden is then placed upon the master to show that the person operating the machine was not his servant or was not at the time of the injury engaged in the business of the master.
2. (a) While on general demurrer the petition must be strictly construed against the pleader, pleadings are to be given a reasonable intendment, and a strained and unnatural construction will not be given them in order to raise an inference against the pleader.
(b) It is a substantial, not literal, agreement between the allegata and probata which the law requires. The testimony in this case, admitted without objection, was in substantial agreement with the pleadings.
3. A party may avail himself of admissions made in the pleadings of the other without offering in evidence the pleadings showing the admissions. Nevertheless, if a party desires instructions to the jury touching admissions made in the other party's pleadings, he should present a proper request therefor. In absence of a proper request, a trial court does not err in failing to instruct the jury specifically that various portions of the opposite party's pleadings should be considered by the jury as admissions against that party.
4, 5. There is no merit in the special grounds of the motion for new trial considered in these divisions of the opinion.
6. A verdict should be given its reasonable intendment as considered in the light of the pleadings and the evidence in the case.
Georgia Power Company brought an action for damages against Jimmy Rabun and Mrs. Patricia Harrell Rabun in the Superior Court of McDuffie County, Georgia, alleging that the Valiant automobile of plaintiff was driven by Harris M. Yarbrough at the time of its collision with the automobile driven by Mrs. Patricia Harrell Rabun and owned by her husband, Jimmy Rabun, and that the Rabun automobile was being operated at the time by Mrs. Rabun under the family purpose car doctrine.
Jimmy Rabun and Mrs. Patricia Harrell Rabun filed their joint answer to the petition and Mrs. Patricia Harrell Rabun filed a cross action against the company for damages, seeking recovery for her alleged injuries. It was alleged in the plea and answer, and cross action, that '* * * Harris M. Yarbrough who was the servant, agent and employee of the plaintiff at the time * * *' and 'That the direct and proximate cause of the collision was the negligence of the plaintiff, by and through its servant, agent and employee, Harris M. Yarbrough' and the negligence of the company through Yarbrough was specified.
Verdict was returned against the power company and in favor of the defendants for $4,000. The Georgia Power Company brings exceptions to this court on the judgment overruling its motion to dismiss the cross action, the judgment denying its motion for judgment notwithstanding the verdict, and the judgment overruling its motion for new trial.
Randall Evans, Jr., Thomson, for plaintiff in error.
Stevens & Stevens, Robert L. Stevens, Thomson, for defendant in error.
1. (a) Exceptions are brought to the overruling of the plaintiff's motion to strike the cross action. Among the objections is the contention that neither the petition, the answer nor the cross action contained language sufficient to show that the vehicle belonging to Georgia Power Company was being operated at the time of the collision by an agent of the company in the scope of employment or on the company's business.
The petition of the company alleged that Harris M. Yarbrough at the time of the collision was driving the described automobile which was 'owned by plaintiff.' The cross action alleged the Harris M. Yarbrough 'was the servant, agent and employee of the plaintiff at the time'; that Yarbrough 'was driving the automobile of plaintiff' at the time of collision; and 'that the direct and proximate cause of said collision was the negligence of the plaintiff, by and through its servant, agent and employee, Harris M. Yarbrough.'
These allegations of agency appearing in the cross action were sufficient to withstand a motion to dismiss as '[a] plaintiff seeking to hold a defendant liable for the acts of its agent committed within the scope of the agent's authority may alleged such agency simply by stating that the defendant, acting through its named agent, did the act in question.' Bankers Fidelity Life Ins. Co. v. Morgan, 104 Ga.App. 894, 896, 123 S.E.2d 433, 436; Conney v. Atlantic Greyhound Corp., 81 Ga.App. 324, 328(2), 58 S.E.2d 559; Griffith v. Chevrolet Motor Division, 105 Ga.App. 588, 596, 125 S.E.2d 525; Herrin v. Lamar, 106 Ga.App. 91, 95, 126 S.E.2d 454; Hicks v. M. H. A., Inc., 107 Ga.App. 290, 293, 129 S.E.2d 817.
The cases cited by the plaintiff in error in support of its contention, Ford Motor Co. v. Williams, 219 Ga. 505, 134 S.E.2d 32; Falls v. Jacobs Pharmacy Co., Inc., 71 Ga.App. 547, 31 S.E.2d 426; and Taff v. Life Ins. Co. of Ga., 77 Ga.App. 836, 50 S.E.2d 154, were all decided on the premise that the allegations of agency appearing in the respective petitions were refuted by other allegations showing that the acts in question were not performed within the scope of the actors' authority or on the principals' business. The pleadings here are not subject to that criticism.
(b) Similarly, exception is taken to the denial of the company's motion for judgment notwithstanding the verdict on the ground that there was no proof that Yarbrough, in driving the company's automobile, was the company's servant or was acting by command of the company or was acting within the scope of the business of the Georgia Power Company.
There is in the record evidence showing that the automobile belonged to the company and that Yarbrough was the company's employee at the time of the collision. This was sufficient to present a jury question.
'[I]f it is shown that the driver operating the master's vehicle was in the master's employment at the time of the injury, the presumption arises that the driver was engaged in the master's business and within the scope of his employment, and the burden is then placed upon the master to show that the person operating the machine was not his servant or was not at the time of the injury engaged in the business of the master.' Pratt v. Melton, 107 Ga.App. 127, 132, 129 S.E.2d 346, 350.
The contentions considered in this division of the opinion are without merit.
2. (a) The contention is made that the company's oral motion to strike the cross action should have been sustained for the reason that the allegations of the cross action show an impossibility that the collision could have occurred as pleaded.
The cross action alleges in effect that the company car was traveling at a speed of 15 miles per hour and the pleader's car at a speed of 55 miles per hour. The vehicles were approaching from opposite directions. At a point where the driveway of the Thomson Plumbing and Electric Sales and Service Co. intersects the highway, the company's car suddenly and without warning was turned to the left into the path of the pleader's car causing them to collide.
The argument advanced is that each of the approaching vehicles immediately prior to the collision was on its respective right side of the road, and that, because of the difference in the alleged speed of the two vehicles, the pleader's vehicle would have been removed from the alleged place of impact before the company's vehicle could have reached the point.
While the language of the cross action is subject to the construction that each of the approaching vehicles was on its proper side of the road immediately prior to the collision, there is absolutely nothing alleged from which there can be fairly drawn any inference of the distance either of the vehicles was to the right of the center of the road. Thus by a reasonable construction of the pleadings a mere matter of inches or fractions of inches could have been involved. Obviously, the clash could have occurred as alleged.
In this status, it would be a strained and...
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