Royal Undertaking Co v. Duffin
| Decision Date | 03 March 1938 |
| Docket Number | No. 26621.,26621. |
| Citation | 196 S.E. 208,57 Ga.App. 760 |
| Parties | ROYAL UNDERTAKING CO. v. DUFFIN. |
| Court | Georgia Court of Appeals |
Rehearing Granted March 11, 1938.
Judgment Adhered to April 1, 1938.
Syllabus by the Court.
1. The owner of an automobile is not liable for an injury from negligent driving thereof by an employee who was using the car for a private personal purpose entirely disconnected from the owner's business.
2. The presumption, if any, arising from the use of a car by a servant of the owner that it was being driven with authority of the owner and about his business, cannot prevail against positive and uncontradicted testimony of unimpeached witnesses to the contrary.
Error from City Court of Savannah; Alex R. MacDonell, Judge.
Action by W. J. Duffin against the Royal Undertaking Company for injuries sustained when plaintiff was struck by an automobile of defendant. To review a judgment for plaintiff, defendant brings error.
Reversed.
James P. Houlihan, Jr., and Anderson, Cann & Dunn, all of Savannah, for plaintiff in error.
Arthur L. Purvis, of Savannah, for defendant in error.
W. J. Duffin brought an action against Royal Undertaking Company in the city court of Savannah, alleging that, on December 26, 1935, he received severe personal injuries as he was crossing a certain street in Savannah, after alighting from a streetcar, by being run over by an automobile belonging to the defendant which was being driven by an agent and employee of the defendant, named Underwood; that this driver did not give warning by sounding his horn, but drove with great speed past a streetcar which was discharging passengers, in violation of certain ordinances of the city, one of which required all vehicles nearing a streetcar, which was stopped to take on or let off passengers, to come to a full stop at least eight feet from the streetcar, until the streetcar shall have resumed its progress, and all persons leaving the streetcar shall have reached the sidewalk.
On the trial the jury found in favor of the plaintiff. The defendant moved for a new trial on the general grounds and because of instructions to the jury which were alleged to be erroneous, and because the verdict was excessive. This motion was overruled, and the defendant excepted.
Although there is no allegation in the petition that the automobile was being driven in the prosecution of the defendant's business, the answer of the defendant asserted that the driver of the automobile was not in the employment of the defendant and that he was using the automobile without the knowledge or consent of the defendant and without the scope of his authority. This was the vital issue in the case.
The driver of the automobile, Underwood, testified that he was not in the employ of the defendant in 1935, had not been so employed since 1928; that he was passing by the defendant's place of business when one Edmundson called him and asked him to drive him [Edmundson] out to see a sick friend on the White Bluff road; and that when he left the defendant's place he was not going on the business of the company but was on a mission for Edmundson; that Edmundson did not tell him he had to go off on a call that night. Edmundson testified that he was in the employ of the defendant on the evening of December 26, 1935; that he asked Underwood to drive him to White Bluff to see a sick man; that he was not on the defendant's business but on his own business; that on that night he went to see J. W. Ned, who was sick at the Four Mile Hill on the White...
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