Pearce v. Ward

• Decision Date: 08 February 1945
• Docket Number: No. 30747.,30747.
• Citation: 33 S.E.2d. 39
• Parties: PEARCE, YOUNG, ANGEL CO. v. WARD.
• Court: Georgia Court of Appeals

33 S.E.2d. 39

PEARCE, YOUNG, ANGEL CO.

v.WARD.

No. 30747.

Court of Appeals of Georgia,

Division No. 2.

Feb. 8, 1945.

Syllabus by the Court.

1. The court did not err in disallowing the amendment to the declaration in attachment. The allegations in the amendment were contradictory to those in the declaration and since the contradictory statements in the declaration were not stricken the new allegations could only have been made by the addition of a new count. Since it did not appear upon what ground the court disallowed the amendment his judgment will be affirmed if the disallowance was proper for any reason.

2. The award of a nonsuit was proper because the evidence fails to show that the servant of the defendant had authority to procure another person to drive defendant's truck or that the defendant ratified such conduct of his servant. Assuming for the sake of argument that the defendant would be liable for his servant's negligence in selecting another to drive defendant's truck, or for negligence in failing to control his conduct, the evidence in this case fails to show liability. There was no evidence that the servant selected an unknown substitute or knew or had reason to believe that he was selecting an incompetent person or substitute.

Error from City Court of Louisville; N. J. Smith, Judge.

Action by Pearce, Young, Angel Company against F. C. Ward for damagesto plaintiff's truck and cargo allegedly resulting from negligence of defendant's servant. To review a judgment of nonsuit, plaintiff brings error.

Affirmed.

Pearce, Young, Angel Company sued F. C. Ward for damages to its truck and cargo allegedly resulting from the negligence of a servant of the defendant. The declaration in attachment alleged that the defendant's truck was in charge of a servant of the defendant. The plaintiff tendered the following amendment to its declaration which was disallowed: "That the driver and person in charge of the truck of F. C. Ward was at the time of the accident and wreck in charge of said truck; that he was present on said truck and in charge of said truck and responsible for the operation of said truck, but that he permitted another, a soldier, whose name is unknown to plaintiff, to drive said truck in a careless and reckless manner. That the servant of said Ward was present and actually in charge of said truck when same wrecked truck of plaintiff." After introduction of plaintiff's evidence the court granted a nonsuit. The plaintiff excepts to the disallowance of the amendment and to the judgment of nonsuit.

R. N. Hardeman and Frank Hardeman, both of Louisville, for plaintiff in error.

M. C. Barwick, of Louisville, for defendant in error.

FELTON, Judge.

1. It does not appear from the record what objection or objections were made to the amendment. In such a case if the court was authorized to disallow it for any reason his judgment disallowing it will be affirmed. White v. Little, 139 Ga. 522(2b), 77 S.E. 646; Campbell v. Gormley, 184 Ga. 647, 192 S.E. 430, and cases cited. We cite one theory on which the court might have based its judgment. There may be others. The petition alleged that the defendant's servant was driving defendant's truck. The amendment alleged that a soldier, who was not a servant of the defendant, was driving it. The original allegation of the petition to the effect that the defendant's servant was driving the truck was contradictory to the allegation in the amendment and was not stricken. In the absence of the striking of the contradictory paragraphs in the petition the only way the plaintiff could have accomplished his purpose to allege the contents of the amendment would have been to add a separate count to his petition. Since he did not strike the contradictory allegation nor add a new count the court did not err in disallowing the amendment.

2. There was no evidence that the defendant's employee was driving the truck at the time of the collision. Assuming for the sake...