Stenger v. Mitchell

• Decision Date: 02 February 1944
• Docket Number: No. 30313.,30313.
• Citation: 28 S.E.2d 885
• Parties: STENGER. v. MITCHELL et al.
• Court: Georgia Court of Appeals

28 S.E.2d 885

STENGER.

v.MITCHELL et al.

No. 30313.

Court of Appeals of Georgia, Division No. 2.

Feb. 2, 1944.

Syllabus by the Court.

1. The evidence for the plaintiff failed to support the allegation of the petition that the driver of the automobile, by which it was alleged the plaintiff was injured, was at the time of the accident the agent and employee of the defendants and upon the business of the defendants, and therefore the court did not err in granting the motion for nonsuit.

2. It is no ground to reverse a judgment of nonsuit that the court excluded evidence which was merely cumulative in its nature, and which, if admitted, would not have changed the scope and effect of the evidence in the case.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Suit by Mrs. Vannie Stone Stenger against A. O. Mitchell and Mrs. Ruby Mayes Mitchell, trading as Mitchell Motors, for damages on account of personal injuries allegedly sustained in automobile accident. There was a judgment of nonsuit, and the plaintiff brings error.

Judgment affirmed.

Fraser & Irwin, of Atlanta, for plaintiff in error.

Neely, Marshall & Greene, of Atlanta, for defendants in error.

SUTTON, Presiding Judge.

Mrs. Vannie Stone Stenger sued A. O. Mitchell and Mrs. Ruby Mayes Mitchell, trading as Mitchell Motors, for damages on account of certain personal injuries allegly sustained by her in an automobile accident. Her petition alleged in substance, that she sustained certain described personal injuries when the automobile she was driving was struck by an automobile owned by the defendants and driven by A. S. Moore, who was "at said time and place an agent and employee of the defendants, and was upon the business of the defendants, " and who was negligent in certain specified particulars, and that this negligence was the direct cause of her injuries. Judgment was sought against the defendants.

The defendants answered and denied the allegations of the petition, and alleged that if A. S. Moore was driving an automobile owned by them at the time of the alleged accident, he was not operating it on the business of the defendants, or either of them, but was on a purely personal mission.

On the trial, the plaintiff testified that she was injured when the automobile she was driving was struck by an automobile owned by the defendants and operated by A. S. Moore. She described the nature and extent of her injuries, which she testified were the result of the negligence of Moore in the operation of the automobile he was driving at the time.

O. A. Mitchell, one of the defendants, testified to the effect that he and his wife, who was the other defendant, owned Mitchell Motors which was an automobile agency. That A. S. Moore was employed by the defendants as a salesman prior to the time of the accident; that he was employed on a commission basis and privileged to find purchasers with priority to purchase automobiles; that he was allowed the use of the defendants' automobiles as an accommodation and a courtesy; that R. G. Jones was the sales manager of the business and in charge of sales, but he was not directly responsible for the opening and the locking of the doors to the building as this was handled by the service department; that Jones had a key to the building and the right to unlock the doors of the building to show any prospective purchaser an automobile and the right to tell any salesman to lock it up for him; that Moore also had a key to the building and the right to unlock the doors to show any prospective purchaser the automobiles, and this was the primary reason that he had a key to the building.

A. S. Moore testified to the effect that on the date of the accident R. G. Jones and he were the only salesmen employed by the defendants, and that one of them was supposed to lock the doors of the building each afternoon. They alternated days, and he would lock up one afternoon and Jones the next. The defendants furnished Jones and him an automobile to use, and at the time of the accident, he was driving one of the automobiles owned by the defendants. The defendants owned eight or ten automobiles which were used for demonstration purposes and he was allowed to use any one of them that he desired to use. The defendants furnished the gasoline and oil used by him in his work. He was employed to sell as many automobiles as he could for the defendants, and when not demonstrating an automobile to a prospective purchaser, he would keep and use the automobile for his own purposes. On the day of the accident, he demonstrated the automobile to a prospective purchaser that morning, but left him at the post office building and then drove by where his wife worked and picked her up, and they drove by a grocery store and purchased groceries before going home where his wife prepared lunch for them. About fouro'clock that afternoon, he drove back to the building of the defendants to lock the doors. He saw that the rear door was locked and locked the front door and after crossing the street where he purchased some cigars, he returned to the automobile and started home. He had no prospective purchasers to see that afternoon or the next day and he had finished everything he was supposed to do at the defendants' place of business before starting home. He could have driven down town in the automobile if he had had any business there, or could have gone to a picture show. He was responsible for the automobile and had full control of...