Parks v. Fuller

• Decision Date: 20 October 1959
• Docket Number: No. 2,No. 37822,37822,2
• Citation: 111 S.E.2d 755,100 Ga.App. 463
• Parties: Idus PARKS v. Frank FULLER, Administrator, et al
• Court: Georgia Court of Appeals

Page 755

111 S.E.2d 755

100 Ga.App. 463

Idus PARKS v. Frank FULLER, Administrator, et al.

No. 37822.

Court of Appeals of Georgia, Division No. 2.

Oct. 20, 1959.

Syllabus by the Court.

1. The allegations of count 2 of the petition affirmatively showed that the alleged driver of the automobile in which the plaintiff's intestate was riding was not acting in the scope of his employment at the time and place of the accident which resulted in the intestate's death, and the trial judge did not err in sustaining the demurrer to that count which sought a recovery from the employers based on the driver's negligence and on the theory of respondeat superior.

2. There being no evidence that the plaintiff's intestate was in any way contributorily negligent or that she assumed the risk of the defendant's negligence or failed to exercise ordinary care to discover and avoid such negligence, the trial court erred in instructing the jury as to these matters.

3. (a) The charge of the court on circumstantial evidence unduly emphasized the defendants' contentions, and intimated and expressed an opinion of the court as to what evidence the jury should believe and disbelieve and as to what had been proved in the case.

(b) A sufficient charge on circumstantial evidence, under the facts of this case, would have been, after defining circumstantial evidence, to charge as follows: 'If you find, under the law which I have given you in charge, that the right of the plaintiff to have a verdict in this case is dependent upon the existence of a particular fact, or facts, and if you further find that proof of such fact, or facts, rests solely on circumstantial evidence, before you would be authorized to return a verdict for the plaintiff, you must find that such evidence reasonably establishes the existence of that fact, or those facts, and that it preponderates to the theory that such fact, or facts, exists rather than to any reasonable hypothesis that it, or they, do not exist.'

4. Special ground 7 of the motion fails to show harmful or reversible error.

5. The portion of the charge on expert testimony was not subject to any of the criticisms leveled at it in special ground 8 of the motion for new trial.

6. Under the facts of this case an instruction that the jury must find against the driver of the automobile wherein the plaintiff's wife was riding when she was killed before they would be authorized to find against the defendant owners of the automobile and employers of the driver, was not authorized.

7. The evidence did not demand a verdict for the defendants.

Idus Parks brought suit in two counts in the Superior Court of Fulton County against William P. Kennedy as administrator of the estate of Arthur Goodman, Jr., and against Mrs. Bess W. Winecoff, W. Frank Winecoff and the G. S. W. Company, a partnership composed of the said Winecoffs, for damages on account of the death of his wife, Sara Parks, which occurred when an automobile in which she was riding struck a pillar supporting a bridge spanning 'the northeast leg' of the Atlanta expressway while traveling at a high rate of speed. It was alleged in the petition that the driver of the automobile was Arthur Goodman, Jr., who was employed by the Winecoffs and by thd G. S. W. Company as a janitor in an apartment house located on Peachtree Road in Atlanta, Georgia, and that as a part of his employment he was furnished the automobile to drive in the performance of his duties as janitor, and also as a part of the compensation of his employment, to use for his own personal pleasure and convenience; that the said Goodman was a dangerous, reckless and incompetent driver, which fact was known to the defendants Winecoff by reason of the fact that he had been involved in certain specifically alleged previous violations of the traffic laws and in certain specifically alleged previous accidents while driving the said automobile, which facts the defendants Winecoff knew, and that they continued to furnish him with the automobile and permit him to drive it. The plaintiff relied on two theories for a recovery insofar as the defendants Winecoff and the G. S. W. Company were concerned; in count 1, on the theory that they were negligent in continuing to furnish Arthur Goodman with an automobile and in continuing to permit him to drive the same after having knowledge of his dangerous, reckless and incompetent character as a driver; and, in count 2, on the theory that on the occasion in question Arthur Goodman was acting within the scope of his employment and that the defendants were liable for his negligent conduct at the time and place on the basis of respondeat superior.

The defendants demurred generally and specially to both counts of the petition and the trial judge sustained certain special demurrers and thereafter sustained the general demurrers to count 2 of the petition at the same time overruling the demurrers to count 1, thus eliminating from the case any question as to Goodman being within the scope of his employment at the time and place of the incident in question. The sustaining of these demurrers is one of the assignments of error. The case proceeded to trial and the jury returned a verdict for the defendants. The plaintiff made a motion for new trial on the general grounds and on nine special grounds. The trial court denied it and the exception here is to that judgment.

Saul Blau, Atlanta, for plaintiff in error.

Greene, Neely, Buckley & DeRieux, Hurt, Gaines, Baird, Peek & Peabody, W. Neal Baird, Atlanta, for defendants in error.

CARLISLE, Judge.

1. It is contended by the plaintiff in error that the allegations of count 2 of the petition and specifically of paragraph 10 and paragraph 22 thereof brought the case, insofar as that count is concerned, within the rules announced in such cases as Bailey v. Murray, 88 Ga.App. 491, 77 S.E.2d 103, and Southern Gas Corp. v. Cowan, 89 Ga.App. 810, 81 S.E.2d 488, and Harris v. Price, 95 Ga.App. 521, 523, 98 S.E.2d 118, in which cases it was held in effect that where an employer furnishes an employee an automobile for the employee's use in performing a part or all of his duties as incident to his employment with the employer, and also permits the employee to use the automobile, when not performing his duties, for his own personal pleasure and convenience, and when the employee is engaged in an activity incidental to his employment, even though there may be some element of such activity involving the employee's own personal pleasure or convenience, that the employer will be liable for injury negligently inflicted by the employee while so using the automobile. Count 2 of the petition in the instant case, however, does not allege such a case against the defendants here. Under the allegations of fact contained in the petition, it is clear that the use of the automobile by Arthur Goodman, Jr., at the time and place of the incident complained of in the petition in this case was purely and simply for his own personal pleasure and convenience. There are no allegations in the petition that would in any wise tend to show that he was at the time engaged in any duty incidental to his employment with the defendants. Accordingly, the cases relied on by the plaintiff in error are not in point. This case, insofar as this question is concerned, is like the cases of Stenger v. Mitchell, 70 Ga.App. 563, 28 S.E.2d 885, and Fambro v. Sparks, 86 Ga.App. 726, 734(3), 72 S.E.2d 473, where the employee, while using an automobile furnished by his employer for his use in performing his duties with the employer and also for his own personal pleasure and convenience negligently inflicted injuries on a third person at a time when he was using it on strictly personal business. In those cases, it was held that no recovery could be had against the employer. Insofar as the allegations of count 2 of the petition in this case are concerned, they make a case like the latter cases and do not state a cause of action against the defendants, Bess W. Winecoff, and W. Frank Winecoff, or the G. S. W. Company. It follows that the trial court did not err in any of the rulings on demurrer complained of.

2. The trial judge charged the jury as follows:

'Gentlemen, a further rule of law to which I call your attention as to the plaintiff, that is, Sarah Parks, that is, the deceased person in this case--the one who is alleged to be the wife of the plaintiff in this case--I charge you that Sarah Parks must have been in the exercise of ordinary care to protect herself against any negligence that may have occurred on the part of the defendants, or any of them; and ordinary care as applied to her has the same definition as that already given you in reference to Mr. and Mrs. Winecoff in this case, that is, that she must exercise the degree of care that an ordinarily prudent person would exercise under the same or similar circumstances.

'Gentlemen, if Sarah Parks, by the exercise of ordinary care, could have avoided the consequences to herself of the defendants' negligence, if there was such, then the plaintiff in this case would not be entitled to recover.

'Gentlemen, the duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the negligence of such other person is shown to be existent, and is either apparent or the circumstances are such that an ordinarily prudent person, under the same or similar circumstances, would have reason to apprehend such negligence, if such negligence was present. * * *'

It is contended in special grounds 1 and 2 that these portions of the charge were error because there was no evidence introduced which in any manner tended to show that the deceased, Sarah Parks, was in any way negligent, or that if she were, that her negligence contributed in any way to her death, or that she assumed the risk of any injury or was aware of any negligence on the part of Goodman of the other ...