Nichols v. G. L. Hight Motor Co.

• Decision Date: 21 June 1941
• Docket Number: 28861.
• Citation: 15 S.E.2d 805,65 Ga.App. 397
• Parties: NICHOLS v. G. L. HIGHT MOTOR CO. et al.
• Court: Georgia Court of Appeals

15 S.E.2d 805

65 Ga.App. 397

NICHOLS v. G. L. HIGHT MOTOR CO. et al.

No. 28861.

Court of Appeals of Georgia, Division No. 2.

June 21, 1941

Rehearing Denied July 19, 1941.

Syllabus by the Court.

Maddox & Griffin, of Rome, for plaintiff in error.

Matthews Owens & Maddox, of Rome, for defendants in error.

SUTTON Judge.

Mrs Mary Nichols filed suit against G. L. Hight Motor Company and Herman Johnson for damages on account of the homicide of her son, Andrew J. Nichols, alleged to have been caused by the negligent operation of an automobile driven by Johnson while on business for the motor company, his alleged employer. On the trial of the case the court granted a nonsuit as to the defendant motor company, and in Nichols v. G. L. Hight Motor Co., 63 Ga.App. 155, 10 S.E.2d 439, 443, to which reference may be made for a full statement of the pleadings and the evidence, this court reversed the judgment of the trial court, holding that under the evidence it was a jury question whether or not Johnson was the servant of the automobile company and, if so, whether or not, at the time of the homicide, he was acting within the scope of his employment and performance of his duties as a salesman for the company. When the case again came on for trial the court, after the introduction of evidence, granted a nonsuit as to the motor company, and the exception here is to that judgment, the plaintiff in error contending that under the evidence the case should have been submitted to the jury.

It appeared from the evidence introduced on both trials that Herman Johnson was engaged in selling automobiles on commission for the G. L. Hight Motor Company in Rome, Georgia, and that while driving a coupé belonging to the company at about 6:45 o'clock on the night of February 3, 1939, in the City of Rome, he ran upon and killed the son of the plaintiff, who at the time was standing in the center of Broad Street at the rear of a truck which, while being driven by him, had broken down. Johnson had been endeavoring by personal calls, prior to February 3, 1939, to sell an automobile to R. R. Hardin, but no sale had been made, particularly because no agreement had been reached as to the amount to be allowed him on a car to be traded in. Hardin, who worked at Sterchi's in Rome, went to the premises of the motor company between 5 and 6 o'clock in the afternoon of February 3, 1939, and informed the general manager, Golden Stevens, that he wanted to see Herman Johnson, who had been trying to sell him an automobile. He was informed that Johnson was out, but Stevens appraised the car of Hardin. Johnson arrived a short while after Hardin's departure, and Stevens told him that Hardin had been in to see him and directed Johnson to get in touch with him. Johnson stated to Stevens that he would see Hardin after supper. The homicide for which the present suit is brought occurred about 6:45 p. m., after Johnson had left the premises of the motor company, and other facts in connection therewith, as adduced on the last trial of the case, will be hereinafter shown.

In the statement of facts in the report of the first appearance of the case before this court it was recited: "There was testimony going to show that Johnson before going to Sterchi's to see Mr. Hardin had stopped at the Partridge Cafe, where his wife was employed, to eat supper. Sterchi's was located on the northwest corner of Fourth Avenue and Broad Street. The accident resulting in the death of the plaintiff's son occurred just north of Fourth Avenue towards Fifth Avenue on Broad Street. Partridge Cafe was on Broad Street just north of Fifth Avenue towards Sixth Avenue. Under the ordinance of the City of Rome if one is going north on Broad Street he cannot make a U turn to come down the other side of Broad Street until he comes to Sixth Avenue." In the opinion it was said: "This brings us to consider the second phase of this case: Was Johnson *** acting within the scope of his employment at the time of the accident, which resulted in the death of the plaintiff's son? From the testimony of Johnson *** it appeared that upon the occasion of the accident he was using an automobile *** which had been furnished to him by the company for use in connection with the sale by him of automobiles for the company, that at the time he was going to call upon a prospect to whom he was trying to sell a new automobile, that this prospect had previously been in contact with him with reference to purchasing an automobile and had gone by the company office and informed the manager that he wished to see Johnson, that the manager so informed Johnson, and directed Johnson to call upon this prospect, that this was around 6 P M., that Johnson would be unable to see this prospect before 7:30 that evening, that Johnson went first by a cafe where his wife worked and ate supper and was on his way from that place to call upon this prospect when the accident occurred. It appeared that on the day of the accident this prospect had visited the office of the *** company and had told the manager to have Johnson 'come up to see me at the store that night.' The manager of the company testified that this prospect came by the company office around five o'clock the evening of the accident and stated that Johnson had been calling upon him with the idea of selling an automobile to him, that when Johnson later came to the office the witness directed him to call upon this prospect, and that Johnson stated that 'he would as soon as he got supper.' There was evidence to the effect that the place where the accident...