Nicholas v. Callaway

• Decision Date: 19 January 1945
• Docket Number: No. 30678.,30678.
• Citation: 32 S.E.2d 836
• Court: Georgia Court of Appeals
• Parties: NICHOLAS. v. CALLAWAY.

32 S.E.2d 836

NICHOLAS.

v.CALLAWAY.

No. 30678.

Court of Appeals of Georgia, Division No. 1.

Jan. 19, 1945.

Syllabus by the Court.

1. The instant case belongs to that class of cases where the servant started on a trip to serve his own purposes (and he was serving such purposes both in the going and the returning), and not to that class where the trip was commenced and ended in the master's service but a variance from the expected course was made. 7-8 Huddy Cyclopedia of Automobile Law, 9th Ed., p. 257.

2. Where the journey upon which the servant starts is wholly for his own purposes and without the knowledge and consent of the master, during the interval of this trip, the master will not be liable for the acts of negligence of the servant.

Error from Superior Court, Whitfield County; J. M. C. Townsend, Judge.

Action by A. H. Nicholas against W. W. Callaway for damage to plaintiff's automobile caused by a collision with defendant's truck. To review a judgment entered upon a directed verdict against plaintiff, plaintiff brings error.

Judgment affirmed.

This was an action by Nicholas against Callaway to recover for damages to his car caused by a collision with a truck owned by Callaway and driven by one Wells. The following is, in effect, the undisputed testimony of Wells, the driver, and Callaway, the owner of the truck in question, as it relates to the question of whether at the time of the collision Wells was acting within or without the scope of his employment. Wells' testimony, in part, was to the following effect: "I am a driver for Mr. Callaway. I have been working for Mr. Callaway right around a year. I would bring the truck in [to my home] at night and then go back in it the next day. I did this with Mr. Callaway's knowledge and consent. I did not store this truck at the Chevrolet place every night. I generally took it on to the house. This is the truck I drove regularly. On this particular occasion I left it at the plant at Mr. Callaway's, for one of the other boys was to make a trip that night. The next morning one of the other drivers came down and told me about it being at the Chevrolet place. Generally, there are some of them up there, so I went to see where my truck was. * * * I was up there looking for my truck. I was going to haul some spreads that morning [to Canton, another town or city], but when I got to the garage I found that the engine wouldn't [hardly] run. It was missing and skipping. I was going on a trip to Canton, but the truck was in too bad shape to take out [make the trip]. I was going down to tell my wife about the truck and come back to the [Chevrolet] garage--leave it there so they could fix it. It was my instruction from Mr. Callaway if anything got in bad repair to always take it to the Chevrolet place to be repaired. As far as I know, Mr. Callaway did not know that I was going to tell my wife anything." Callaway testified, in part, as follows: "I use a number of trucks in connection with my business. Mr. Wells was driving one of my trucks on the occasion in question. He [Wells] was supposed to make a trip from the laundry to Canton and back. He was to carry something over and he was going to get something. I was at home that morning. Mr. Wells had permission to leave the truck at his house at night, when he was down this way, spend the night, and come back. It was no business of mine that he notify his wife that he wasn't going to Canton that day. Something had happened to the truck the night before. When I examined the motor the valves...