Lewis v. Amorous
| Decision Date | 25 November 1907 |
| Docket Number | 465. |
| Citation | 59 S.E. 338,3 Ga.App. 50 |
| Parties | LEWIS v. AMOROUS et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A principal or master being responsible for the negligent acts of his agent or servant only when done by command or within the scope of the employment, it is necessary, in an action seeking to charge one for the acts of another upon the theory that the latter was agent for the former, that the petition should disclose, either expressly or by necessary implication, not only the existence of the agency, but also the connection of the act with the employment.
[Ed Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 600.]
Where the owner or person in possession of an automobile merely permits another to use it, the latter does not thereby become the agent or servant of the former so as to charge the one with the other's negligence.
The owner or keeper of an automobile will not be held liable for a negligent homicide committed therewith in a public street by a person old enough to be discreet and responsible in the eyes of the law, who took the machine, without the knowledge of the former, from a shop or garage where it had been left although the person who thus took and drove the machine was inexperienced in its operation and unlicensed to run it notwithstanding the leaving of the automobile at the shop or garage furnished the opportunity whereby such person got possession of it.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by R. M. Lewis against F. M. Amorous and others. From a judgment dismissing the action, plaintiff brings error. Affirmed.
In an action for death of plaintiff's son by being struck by an automobile while operated by one not the owner, a petition, in order to state a cause of action against the owner, must either expressly or by necessary implication allege not only the existence of an agency between the owner and the operator, but also the connection of the act with the employment.
For the homicide of her minor son Mrs. Lewis brought an action against Martin F. Amorous, John F. Toole, and Edward H. Inman. The petition contained four counts. The first count is as follows: Defendants on the 25th day of September, 1905, kept an automobile on North Pryor street, in the city of Atlanta. It had been kept there for some time. Said automobile was kept there by all the defendants. On the day aforesaid defendants permitted one Percy Pybus to take and run said automobile. Said Pybus was by said act created the agent for each and all of said defendants. For his negligent conduct in running said automobile, they are jointly and severally liable. All of the negligence herein set forth was the concurrent negligence of each of the said defendants. On the day hereinbefore named, in the city of Atlanta, Fulton county, petitioner's son, Branch Lewis, Jr., was run down and killed as hereinafter set forth. Petitioner's son was on Washington street near the corner of Clark street at about 7 p. m., on said date. A number of children were skating and playing in the streets and on the sidewalks at said place. Said automobile, being then and there run by said Pybus, agent as aforesaid, dashed down Washington street at a dangerous and reckless rate of speed, without any warning or notice of any sort, into the midst of the children. Petitioner's son and the other children were in plain view of said Pybus for a great distance, and the least ordinary care would have given him notice of the childrens' presence in the street and the danger of running the automobile at such a reckless rate of speed into their midst. Petitioner's son was just prior to his death standing on the sidewalk on Washington street, watching the other children skate. He started across the street and as he was standing, or walking, in the street, he was struck by said automobile and killed. Defendants' agent negligently failed to blow his horn after he passed Rawson street. Defendants' agent negligently ran said automobile at an unsafe and improper rate of speed. He negligently failed to check the machine and avoid striking deceased. Defendants' agent negligently ran into the crowd of children without any warning of any sort. Defendants' agent negligently ran the automobile against petitioner's son and killed him.
The second count contained the following allegations: Defendant Amorous owned an automobile and kept it at an establishment run by defendants Inman and Toole. Said establishment is in the city of Atlanta, on North Pryor street, and is run for the purpose of selling, handling, renting, and repairing automobiles. Defendants negligently permitted the young son of defendant Amorous, Clinton Amorous by name, to control and use said machine and act as agent for them. Said Clinton Amorous within the scope of his authority, turned said machine over to one Pybus. Said Clinton Amorous permitted him to operate and run the same. Said Clinton Amorous constituted said Pybus agent for all the defendants. For his negligent conduct in running said automobile they are jointly and severally liable. All of the negligence herein set forth was the concurrent negligence of each of the defendants. This is followed by allegations as to injury and loss just as in the first count.
The third count contains the following allegations: On the 25th day of September defendants were keeping a certain automobile at a shop or place of business on North Pryor street, in the city of Atlanta. Said automobile was a large and heavy machine, capable of going at a great rate of speed. It was complicated and difficult as to its management and construction. Said automobile was intended to be run in the public streets of the city of Atlanta. It was a machine which was dangerous and unsafe to intrust to any one, unless that person was capable of, not only understanding its mechanical appliances, but also possessed of age and experience which it takes to operate the same. Defendants negligently so kept said automobile as that one Pybus, an experienced youth of 19 years of age, was given an opportunity to operate said machine and run the same about the streets of Atlanta, and use the same on pleasure jaunts. Said Pybus was young and inexperienced and without discretion necessary to run said machine in the city of Atlanta. Said Pybus had no license authorizing him to run said machine, and the running of the same was a violation of a valid municipal ordinance of the city of Atlanta. To permit such a machine to be run by him was negligence on the part of the defendants. For his negligent conduct in running said automobile, they are jointly and severally liable. All of the negligence herein set forth was the concurrent negligence of each of the defendants. This is followed by allegations as to injury and loss just as in the first count.
The fourth count varied from the third only in that it was alleged that the automobile was registered and licensed under a valid ordinance in the name of Clinton Amorous, and that it was negligence to allow any one other than Clinton Amorous to run it.
The defendants each demurred generally and specially. The court sustained the demurrers, and dismissed the action.
Burton Smith, for plaintiff in error.
Edgar Watkins and A. A. & E. L. Meyer, for defendants in error.
1, 2. The theory of the first count is that the defendants, as principal through Pybus, as agent, committed the tort. If the allegation had been the simple direct statement that the defendants by their agent Pybus committed the wrong, this as against demurrer, either general or special, would have been sufficient. Gilmer v. Allen, 9 Ga. 208. However, the plaintiff by stating his action with greater particularity has disclosed (what, in the event of his having used the other form of pleading, would not have been developed until he presented his evidence) the fact that no such agency existed as would make the alleged principal responsible for the act of the agent. The practice of pleading facts relied upon with particularity is commendable; for it is better for plaintiff, for defe...
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