Rape v. Barker

• Decision Date: 12 May 1920
• Docket Number: (No.11415.)
• Citation: 103 S.E. 171,25 Ga.App. 362
• Parties: RAPE. v. BARKER.
• Court: Georgia Court of Appeals

25 Ga.App. 362

103 S.E. 171

RAPE.

v.BARKER.

(No.11415.)

Court of Appeals of Georgia, Division No. 2.

May 12, 1920.

(Syllabus by the Court.)

Error from Superior Court, Dooly County; O. T. Gower, Judge.

Action by O. E. Rape against B. B. Barker. Judgment of nonsuit, and plaintiff brings error. Affirmed.

R. Douglas Feagin, of Macon, and W. H. Lasseter, of Vienna, for plaintiff in error.

Powell Lumsden, of Vienna, and Crum & Jones, of Cordele, for defendant in error.

SMITH, J. [1] O. E. Rape sued B. B. Barker, seeking to recover damages for personal injuries, alleged to have been the result of a collision, at a road crossing, between an automobile owned by the defendant but at the time of the collision driven by the defendant's brother-in-law, and another automobile driven by himself. There was no attack on the petition, and at the conclusion of the evidence for the plaintiff the court, upon motion of defendant's counsel, granted a nonsuit, to which ruling the plaintiff excepted. Only so much of the evidence as is material to an understanding of the rulings announced in the headnotes need be stated.

It is not disputed that the defendant was the owner of the car which was driven by his brother-in-law at the time of the collision with the plaintiff's car. Neither is it disputed that there might have been proof legally sufficient to make a jury question as to whether or not the defendant's car was operated negligently. However, conceding it tobe a fact, that the car was the property of the defendant, and might have been negligently driven by his brother-in-law, the defendant would still not be liable, unless the brother-in-law, in driving the car, was the agent or servant of the defendant and engaged in the performance of the defendant's business.

"The owner, or keeper, of an automobile will not be held liable for a negligent homicide committed therewith in a public street by a person old enough to be discreet and responsible in the eyes of the law, who took the machine, without the knowledge of the former." Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338 (3).

The ruling in that case was followed in the case of McIntire v. Hartfelder-Garbutt, 9 Ga. App. 327, 71 S. E. 492, where it was held that—

"The owner of an automobile usually is not liable for injuries inflicted by one who at the time is driving it without his consent."

See, also, Griffin v. Russell, 144 Ga. 275, 281, 87 S. E. 10 (L. R. A. 1916P, 210, Ann. Cas. 1917D, 994), and Dougherty v. Woodward, 21 Ga. App. 427, 94 S. E. 636 (1).

The evidence in the case under review shows that the defendant was a conductor on the Georgia, Southern &...