Johnson v. Webb-Crawford Co.
| Decision Date | 20 January 1954 |
| Docket Number | No. 2,No. 34965,WEBB-CRAWFORD,34965,2 |
| Citation | 89 Ga.App. 524,80 S.E.2d 63 |
| Parties | JOHNSON v.CO., Inc |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where, in an action by the plaintiff to recover damages on account of personal injuries sustained by being struck by an automobile truck of the defendant corporation, it does not appear that the truck at said time and place was being operated by an employee and servant of the defendant acting within the scope of his employment and performance of his duties, a verdict for the defendant is demanded; and it was not error for the trial judge to direct the jury so to find.
Emmet L. Johnson (hereinafter called the plaintiff), brought suit in Clarke Superior Court to recover damages because of certain personal injuries alleged to have been sustained by him by reason of the negligence of the driver of an automobile truck of the defendant, Webb-Crawford Company (hereinafter called the defendant). It was alleged that the truck was being operated at the time by Murry Lunceford, 'an employee of the defendant,' and 'was used on the occasion in question in the scope of defendant's business.' The plaintiff further alleged that, 'on March 31, 1952, at approximately 5:30 o'clock p. m., the defendant's truck was being driven by Murry Lunceford, an employee of the defendant, who was driving said vehicle in the City of Athens, Georgia, in the course of the employment and on the business of the defendant.' The petition also sets out various alleged acts of negligence on the part of Lunceford in the operation of the truck and also the nature and extent of the injuries received by the plaintiff by being run over and struck thereby.
The defendant filed its answer, in which it admitted that it was the owner of the motor vehicle mentioned in the petition, but denied any liability by denying that at the time such truck is alleged to have struck and run over the plaintiff it was being driven 'in the scope of defendant's business,' and denied that said Lunceford 'an employee of the defendant was driving' the truck 'in the course of the employment and on the business of the defendant.'
The case came on for trial during the October term 1953 of said court before Hon. Clifford Pratt, presiding judge of the superior court, and a jury, and after the introduction of the evidence, being the testimony of the plaintiff and of Harvey Downs, general foreman of the defendant, and upon the conclusion of the testimony of these two witnesses, the jury retired, and counsel for the defendant corporation moved the court for a directed verdict on the grounds (1) that there was no negligence on the part of the driver of the truck shown; and (2) because 'he definitely was not an employee of Webb-Crawford acting within the scope of his employment,' and 'there is nothing here by which the court could even infer that he was an employee acting within the scope of his employment.'
The court recalled the juryAnd directed them to return a verdict for the defendant as follows: 'Under a review by the court of the evidence submitted in this case, which has now been closed, the jury would not be authorized to find for the plaintiff for the reason that the evidence is clear and uncontradicted that the person who the plaintiff testified was the driver of the defendant's truck on the occasion under investigation was not in the employ of the defendant corporation at that time nor did he have authority at any time to drive a truck of the defendant, so a verdict is directed in favor of the defendant.'
The jury accordingly returned a verdict for the defendant, on which judgment was entered. To this verdict and judgment the plaintiff excepted and sued out a direct writ of error to this court, assigning error on said final verdict and judgment on the ground that it was contrary to the law and the evidence for the court to direct a verdict for the defendant company.
Howard Oliver, Jr., H. T. Oliver, Gainesville, for plaintiff in error.
Erwin, Nix, Birchmore & Epting, Athens, for defendant in error.
This court will not deal with the contention of the defendant company that there was no evidence tending in any manner to show negligence on the part of the driver of the defendant's truck, as a result of which he ran over the plaintiff with the truck and inflicted the personal injuries sued for. This is so because the trial judge did not deal with this contention when he directed a verdict for the defendant, but did solely upon the ground and for the reason that there was no evidence tending to show that the driver of the truck was employed by the defendant company as a truck driver and was in and about the business of the company and within the scope of his employment when he so injured the plaintiff.
'Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto.' Code, § 110-104. 'Every person shall be liable for torts committed by * * * his servant, by his command or in the prosecution * * * of his business, whether the same shall be by negligence or voluntary.' Code, § 105-108. It is claimed by the defendant company that there was no evidence at all to submit to the jury tending to show that the person driving this automobile truck which struck and ran over the plaintiff, inflicting the personal injuries sued for, was even employed by the defendant at the time of the accident, and the evidence failed toe stablish that such person was operating the truck within the scope of his employment and in and about the business of the defendant company, but it is contended that the evidence affirmatively discloses to the contrary. This being so, then no other verdict except for the defendant company could have been lawfully returned by the jury. The defendant would only be liable to the plaintiff by virtue of the doctrine of imputable negligence, and the driver of the truck must have been in its employ and at the time engaged in the performance of his duties and about the business of the defendant, his master and employer. If the plaintiff is injured by the operation of a motor vehicle belonging to the defendant...
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