Porter v. Jack's Cookie Co., 39634
| Decision Date | 05 September 1962 |
| Docket Number | No. 39634,No. 1,39634,1 |
| Citation | 106 Ga.App. 497,127 S.E.2d 313 |
| Parties | Terry PORTER, by Next Friend v. JACK'S COOKIE COMPANY, Inc |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Subsequent cross-examination of the same witness without objection by the same party on two occasions after the overruling of a prior objection to such cross-examination constituted an acquiescence in the ruling of the court and a waiver of any error the trial court may have made in overruling the first objection.
2. Where an employee is driving the employer's truck in the performance of an act within the class of service for which he was employed, the fact that it is performed at a time when the employee was forbidden to work does not make the act outside the scope of employment.
3. The duty owing by the defendant to the plaintiff was to exercise slight diligence for his safety. Since the evidence did not disclose a breach of this duty, the trial court properly directed a verdict for the defendant.
Plaintiff's action was for personal injuries arising out of a collision between the defendant's truck and another vehicle. During the course of the trial, plaintiff called for cross-examination Leonard Porter, who was at the time of the collision an employee of the defendant and the driver of the truck in which the plaintiff was riding. The defendant objected to the plaintiff's calling this witness for purpose of cross-examination on the ground that he was not at the time of the trial an employee, agent or servant of the defendant, and further that he had a direct interest in the outcome of the case as he was the father of the plaintiff. This objection was overruled. After the plaintiff cross-examined the father, the defendant also cross-examined him over the objection of the plaintiff. The plaintiff's objection to the defendant's cross-examination of the witness was on the ground that he was the agent of the company at the time of the accident and that as agent of the company, plaintiff was entitled to cross-examine him, but the defendant was not so entitled. This objection was overruled.
After the evidence for both parties was presented and both parties had rested, the defendant made a motion for a directed verdict on the grounds that the evidence introduced with all reasonable deductions or inferences therefrom showed:
(1) That the plaintiff's injuries were sustained from his having accepted from the driver an invitation to ride in the truck without the knowledge or consent of the defendant and against the instructions of the defendant;
(2) That the plaintiff's injuries were sustained while riding in the truck after sundown on Friday, June 5, 1959, and that the defendant did not conduct business after sundown on that day, and the driver had express orders from the defendant not to drive after sundown on Fridays, and the operation of the truck was without the knowledge of the defendant and contrary to its orders;
(3) That the plaintiff was not employed by the defendant to assist the driver who had no authority to employ other servants, and that plaintiff voluntarily undertook to perform the services, and that thus the defendant's only duty to the plaintiff was not to injure him wantonly and wilfully after his peril was discovered, and that there was no breach of this duty;
(4) That the driver of the truck was acting outside the scope of his employment as an agent, employee or servant of the defendant in inviting the plaintiff to ride in the defendant's truck, and in requesting plaintiff to assist him, and in operating the defendant's truck after sundown on the Friday of the accident; and
(5) That the evidence was that the plaintiff did not receive the injuries and damages complained of as a result of any act of gross negligence on the part of the defendant as alleged in his petition.
The trial court directed a verdict in favor of the defendant. The plaintiff excepted to the direction of the verdict and also to the overruling of the plaintiff's objection to the court's allowing the defendant to cross-examine the plaintiff's father as a witness.
Stephens, Fortson, Bentley & Griffin, Edwin B. Fortson, Athens, Stow & Andrews, Robert E. Andrews, Gainesville, for plaintiff in error.
Erwin, Birchmore & Epting, Howell C. Erwin, Jr., Athens, for defendant in error.
1. Counsel for both parties have devoted considerable research to the question whether the defendant had the right to cross-examine, without direct examination, a witness who had been called for cross-examination by the plaintiff.
The plaintiff cross-examined the witness under the authority of Code § 38-1801, as amended, which, in part, provides that either party may make the agent of the other party a witness with the privilege of subjecting him to a thorough and sifting examination and with the further privilege of impeachment as if the witness had testified in his own behalf and were being cross-examined.
The defendant contends that it was entitled to cross-examine the witness since he was no longer its agent or employee, and was interested in the outcome of the case as he was the father of the plaintiff.
Whether the court properly or improperly allowed the defendant to cross-examine the witness, we do not find it necessary to decide. Following the overruling of the plaintiff's objection to the defendant's cross-examination of the witness, on two more occasions the defendant cross-examined this same witness without objection or exception being taken.
In Benton Rapid Expr. v. Sammons, 63 Ga.App. 23(1), 27-29, 10 S.E.2d 290, this court held that the defendant had waived any right it might have had to cross-examine a particular witness by submitting to a former ruling of the court, and in failing to take exception to that ruling and that later excepting to the subsequent ruling on the same issue was not sufficient. See also Sapp v. Callaway, 208 Ga. 805(3), 69 S.E.2d 734, which points to the well-settled rule that the subsequent admission of testimony of like nature after a prior objection is not a ground for reversible error.
We feel that the principles enunciated in Sammons and Callaway apply to and control the issue here. Here there were subsequent cross-examinations without objections by the same party of the same witness on two occasions after the overruling of a prior objection to such cross-examination. The failure to object and except to the later cross-examinations constituted an acquiescence in the court's overruling of the prior objection and a waiver of any error the trial court may have made in overruling the first objection.
2. The plaintiff's second exception was to the trial court's direction of a verdict for the defendant. The uncontradicted evidence showed that the defendant company had a long-standing rule that all of its business would cease at sundown on Friday afternoon until sundown on Saturday, the employees being forbidden to work during these hours, and that the driver of the truck knew of this rule prior to the accident which occasioned this suit. The uncontradicted evidence shows that the accident happened after 8 on a Friday night and that sundown on this day was shortly after 7. The plaintiff was fired after the accident for violation of this rule and another one prohibiting unauthorized riders in the vehicle.
The defendant urges that Hodges v. Seaboard Loan etc., Assn., 61 Ga.App. 443, 6 S.E.2d 133, is authority for direction of the verdict in its favor. In the Hodges case the driver was an employee of the defendant, but the evidence showed without any contradiction that the collision occurred on Sunday; that the defendant was not conducting any business on that day; that the driver had express orders not to drive on Sunday; and that he was operating the vehicle without the knowledge of the defendant and contrary to orders.
Through an oversight in judicial draftsmanship, the official report of the Hodges case does not reveal a most significant factual situation present in the record, which is that the uncontradicted evidence there...
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