Hix-green Co v. Dowis
| Decision Date | 25 May 1949 |
| Docket Number | No. 32469.,32469. |
| Citation | 79 Ga. App. 412,53 S.E.2d 601 |
| Parties | HIX-GREEN CO. v. DOWIS. |
| Court | Georgia Court of Appeals |
Rehearing Denied June 10, 1949.
Syllabus by the Court.
1. "It is not error for the court, in charging the jury, merely to state correctly the contentions made by the allegations of the petition, even though some of the contentions may not be supported by the evidence." See Barbre v. Scott, 75 Ga. App. 524, 525(7), 43 S.E.2d 760. Also, Central Truckaway System, Inc., et al. v. Harrigan et al., Ga.App., 53 S.E.2d 186.
2. Where the plaintiff's evidence shows that the defendant was the owner of the automobile that injured him, and that the person who was operating it at the time of his injury was an employee of the defendant, the presumption arises that the servant was engaged in the master's business and was acting within the scope of the master's business.
3. Although it is proper to prove motive by hearsay, the main facts in a case can not be proved by such evidence. Neither is an unsworn, self-serving statement of an employee provable by third persons in favor of employer.
4. No error of law having been committed against the defendant, the verdict for the plaintiff being supported by the evidence, and the verdict being approved by the trial court, the judgment must be affirmed.
Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Action by W. H. Dowis against the Hix-Grecn Company for personal injuries and property damage. Judgment for plaintiff, and defendant brings error.
Affirmed.
W. H. Dowis, herein referred to as plaintiff, sued Hix-Green Company, herein referred to as defendant, for damages for personal injuries and damages to plaintiff's automobile. The suit was filed in the Superior Court of Fulton County, and the petition alleged substantially that on or about April 24, 1947 the plaintiff was driving his 1940 Studebaker automobile at the intersection of Cain St. and Hilliard St. in Atlanta. After he was in said intersection an automobile of defendant operated by Johnnie L. Snead ran into the left side of plaintiff's car causing plaintiff to sustain severe personal injuries and also damage to his automobile in the sum of $600; that Johnnie L. Snead, at said time and place, was an agent and employee of the defendant and was, at said time and place, operating said automobile truck, which belonged to the defendant, upon the business of the defendant. The petition further alleged that said Snead, while operating the said truck of the defendant, operated said truck into the intersection of Cain and Hilliard Streets, against a stop sign and crossed said intersection in violation of a valid ordinance of the City of Atlanta requiring said truck to stop before entering said intersection; that plaintiff was thrown against the side of the saidautomobile and the steering wheel thereof and sustained multiple injuries to his back and side and bruises and contusions over his entire body and that his chief and main injury was to his spine. Plaintiff alleged further that he sustained a herniated disc, and that his injuries were permanent in their nature; and that he suffered intense pain by reason of said injuries and will continue to suffer for an indefinite period in the future.
The petition alleges that the defendant's servant was negligent in the following particulars, which proximately caused the plaintiff's injuries and damage; (a) In violating a valid city ordinance of the City of Atlanta requiring vehicular traffic to come to a stop before entering the intersection of Cain and Hilliard Streets; (b) In approaching the intersection of two public streets without slackening the speed of said vehicle; (c) In operating a vehicle at an intersection at a rate of speed in excess of fifty-five miles per hour; (d) In failing to give the right of way to a vehicle already in said intersection; and (e) In negligently running into and against the vehicle in which plaintiff was riding.
The defendant filed its answer in which it denied that Johnnie L. Snead was an agent and servant of the defendant at the time and place of the collision, the defendant alleging in its answer that at the time and place he was using the automobile truck for a purpose for which he was not authorized, he was on a mission which was purely personal to himself and he was acting contrary to the instructions of this defendant. Defendant denied the acts of negligence charged and denied responsibility for the injuries and damages sustained by the plaintiff, if any.
Construing the evidence in its light most favorable to support the verdict, the jury trying the case was authorized to find facts substantially as follows: That W. H. Dowis as principal of the Inman Park Boys School in the City of Atlanta was taking a student in his automobile to the Dental College about one o'clock on April 24, 1947, and was traveling west on Cain Street at about 15 to 18 miles per hour and as he approached the intersection of Cain and Hilliard Streets he looked to his left and did not see any one. He drove into the intersection and turned and the truck of the defendant came quickly out of Hilliard Street and across a stop sign and hit the left side of plaintiff's car. Hilliard Street has a stop sign going both ways, and there was no stop sign on Cain Street. The plaintiff's car turned over, driven down the street in which the truck was going until it hit the curb and a fire plug, ricocheted back into Cain Street and when the plaintiff came to his senses he was trying to crawl out of the side of his car. The impact of the automobile threw the plaintiff against the left side of the car, striking his head on the door post, and as he thus turned the arm rest on the door struck his back.
That the truck which struck the plaintiff's car was owned by Hix-Green Company and that it was driven by Johnnie L. Snead, a Negro, who was employed by the defendant as truck driver on this pick up and delivery truck.
Homer Renfroe, a service salesman for the defendant, testified that he told Johnnie Snead that if he were out in the Mellen Battery Co. neighborhood that the defendant had a battery over there he wanted and if they had an armature to get those two while he was there, these instructions being about 10:30 A.M. He further testified that Johnnie Snead as driver of the pickup truck of defendant would go all over town if he had something to be delivered or picked up, and that there were at least six people at work at the defendant's place of business that had a right to send Johnnie Snead out on trips.
Johnnie L. Snead was used by the defendant as witness and testified that his only duties with defendant was driving this pick up and delivery truck on various errands all over Atlanta, as the occasion arose. That he was not instructed by the defendant to make these trips by the most direct route both ways; that on the day in question he had delivered a generator about 9 o'clock in the morning to Mellen Battery Co. for the defendant. Johnnie Snead testified further for the defendant that he left the defendant's place of busi-ness about 12:30 on the date of the collision and went to Mellen Battery Co. and inquired about the generator and was informed that it was not ready, and for him to drop by about 3 o'clock. Mellen Battery Co. is located on Merrits Ave., between Courtland Ave. and Piedmont Ave., between three and four blocks from the place of business of defendant on North Ave. After leaving Mellen Battery Co., this truck driver went to Piedmont Ave., this being in the opposite direction from place of defendant, and then turned south and drove south along Piedmont Ave. to Houston St. and then turned left and continued on in an easterly direction on Houston St. until he reached the intersection of Hilliard St. and then made another left turn and was proceeding north on Hilliard, going back to North Ave., when the collision occurred at intersection of Hilliard St. and Cain St.
Although the said truck driver had traveled about eleven blocks away from his employer's place of business after leaving Mellen Battery Co., he testified without contradiction that, this was the route he always took from Mellen Battery Co. returning to defendant's place of business; that he made no stops after leaving Mellen Battery Co. other than for traffic lights until the collision; that this section of town where the collision occurred was in the Colored Section but
Although he testified that his family received relief in various items of food from the government, that the cards were mailed to his wife and that his pastor, Jackson Minor, picked the groceries up in his car and took them to the witness' home. The witness denied that he...
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...Dawson Motor Co. v. Petty, 53 Ga.App. 746(1), 186 S.E. 877; Hall v. Cassell, 79 Ga.App. 7, 52 S.E.2d 639; Hix-Green Co. v. Dowis, 79 Ga.App. 412(2), 53 S.E.2d 601; Fielder v. Davison, 139 Ga. 509, 77 S.E. 618. This presumption is a rebuttable one, but 'in order to overcome it as a matter of......
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...the truck to the cafe was to get a sack for these eggs. See Dawson Motor Co. v. Petty, 53 Ga.App. 746, 186 S.E. 877; Hix-Green Co. v. Dowis, 79 Ga.App. 412, 53 S.E.2d 601. 2. The director further found against the insurance carrier on its contention that the intoxication was the proximate c......
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General Acc. Fire & Life Assur. Corp. v. Prescott
... ... to the cafe was to get a sack for these eggs. See Dawson ... Motor Co. v. Petty, 53 Ga.App. 746, 186 S.E. 877; ... Hix-Green Co. v. Dowis, 79 Ga.App. 412, 53 S.E.2d ... 2 ... The director further found against the insurance carrier on ... its ... ...
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