Syllabus by the Court
1. The evidence demanded the jury's finding that service of the petition and process was had on an agent of Swift & Company in Emanuel County where it was doing business and the court did not err in denying Swift & Company's motion for a new trial in the matter of the court's jurisdiction of Swift & Company.
2. The court did not err in overruling the general and special demurrers of Swift & Company to the petition as amended.
3. The court erred in admitting the testimony of H. W. Durden as to statements made by the alleged agent of Swift & Company as shown in division 3 of the opinion.
4. The court erred in admitting the testimony objected to and assigned as error in Swift & Company's special ground 2 for reasons stated in division 4.
5. Alleged errors in the charge are not likely to recur on another trial.
6. The evidence did not demand the finding that Wood was not in the course of his employment with Swift & Company at the time of the homicide.
7. The evidence did not demand a finding for both defendants on the basis that the negligence of the deceased was a bar to his recovery.
8. The verdict for $80,000 was excessive.
Mrs. Alice R. Lawson sued Elmer Hailey Wood and Swift & Company, a corporation, to recover damages for the alleged tortious homicide of her husband. The petition alleged: '1. That Elmer Hailey Woods is a nonresident of the State of Georgia and resides at 219 Jackson Avenue, North Augusta, South Carolina. 2. That Swift & Company is a foreign and nonresident corporation being incorporated in the State of Illinois with its principal office in Chicago, Illinois. 3. That on February 19, 1954, Elmer Hailey Woods was an employee of Swift & Company. 4. That on said date the said Elmer Hailey Woods was the servant or agent of said company. 5. That on the said date, said Elmer Hailey Woods was in possession, custody and control in said State and county of one certain 1953 model Ford automobile painted red and black with the name 'Swift & Company' painted on each door of said automobile, said car belonging to said Swift & Company with the full knowledge and consent of said Swift & Company. 6. That on
said date, said Elmer Hailey Woods as an employee of said Swift & Company, was in possession, custody and control of said automobile with the full knowledge and consent of said Swift & Company. 7. That on said date, said Elmer Hailey Woods was in possession, custody and control of said automobile as agent and servant of said Swift & Company with the full knowledge and consent of said Company. 8. That said defendants have injured and damaged your plaintiff in the sum of One Hundred, Four thousand, two hundred fifty-six and no/100 dollars ($104,256.00) by reason of the facts hereinafter alleged. 9. That U S. Highway No. 1 is a paved highway in Emanuel County, Georgia, and runs through said county in a north and south direction. 10. That on the morning of February 19, 1954, Melvin Lawson was traveling along said U. S. Highway No. 1 in a northerly direction in a 1946 Ford coach automobile owned and driven by the said Melvin Lawson. 11. That at a point about nine-tenths of a mile south of Lexsy in Emanuel County, Georgia, on said Federal Highway No. 1, the right rear tire on the said automobile driven by Melvin Lawson became punctured and deflated. Said Melvin Lawson brought said automobile to a stop for the purpose of changing tires so that said automobile could proceed and be properly driven. 12. That after stopping said automobile, the said Melvin Lawson parked the same on the right hand shoulder of the highway more than eight feet removed from the center line of the said U. S. Highway No. 1. 13. That Sgt. J. C. Riner, a brother-in-law of Melvin Lawson, was riding in the automobile with Melvin Lawson at the time of parking said motor vehicle. 14. That after parking said automobile on said shoulder of said highway, the said Melvin Lawson and Sgt. J. C. Riner began endeavoring to change the deflated tire but soon discovered that the automobile jack in the Lawson car would not operate and thereby the wheel of the automobile could not be lifted so as to change the tire. 15. That said Melvin Lawson then began endeavoring to stop approaching motorists by flagging them so that he might borrow an automobile jack and thereby change the tires on his automobile. That this continued for approximately four hours. 16. That at approximately 4:15 o'clock a.m. on said February 19, 1954, an automobile driven by the said Elmer Hailey Woods and owned by the said Swift & Company approached the Lawson car. That said car was also traveling in a northerly direction. 17. That said vehicle driven by Elmer Hailey Woods and owned by aid Swift & Company was traveling at a rate of speed in excess of 55 miles per hour in violation of the laws of the State of Georgia. 18. That at the time of the approach of the Swift & Company automobile, the said Melvin Lawson was standing by the left side of his automobile when suddenly the automobile owned by Swift & Company and driven by Elmer Hailey Woods without warning swerved to the right and struck the said Melvin Lawson with its right front fender with such force and effect that it threw the said Melvin Lawson underneath the Swift & Company automobile and he was dragged by said car approximately fifty-six feet and two inches. 19. That at the time of said accident, said Elmer Hailey Woods did not give any warning of the approach of his automobile by blowing the horn or otherwise giving any similar warning to said Melvin Lawson of the approach of said car operated by the said Elmer Hailey Woods. 20. That the automobile owned by Swift & Company and driven by the said Elmer Hailey Woods reduced its speed but did not stop and completely ran over the said Melvin Lawson and then said automobile continued in a northerly direction. 21. That at the time of hitting and running over the said Melvin Lawson, the said Elmer Hailey Woods was driving said vehicle under the influence of intoxicants in violation of the laws of the State of Georgia and was operating said automobile in a careless manner and did not have said vehicle under control. 22. That as the
result of said negligent operation of said automobile by said defendants, said deceased received the following injuries from which he died in Swainsboro, Georgia, on the same date: Compound comminuted fracture right tibia and fibula; fracture right hip and pelvis; contusions of forehead and concussion of brain; contusions of entire right side, thorax, abdomen and hip. 23. That the cause of said death was the direct result of the negligent operation of said automobile as herein set forth. 24. That your plaintiff was the lawful wife of Melvin Lawson at the time of his death on February 19, 1954. 25. That at the time of his death, the said Melvin Lawson was capable of earning the sum of three thousand, six hundred & no/100 dollars ($3600) per year. 26. Plaintiff avers that Melvin Lawson was thirty-eight years of age on the date of his death and had a life expectancy of 28.96 years. 27. That on February 19, 1954, Elmer Hailey Woods was employed by Swift & Company as a sales representative and at the time of the said accident to the said Melvin Lawson, which caused his death, the said Elmer Hailey Woods was in the prosecution of business for Swift & Company and was acting within the scope of his authority. 28. Plaintiff alleges the following acts of negligence on the part of said defendants: (a) In operating their motor vehicle upon U. S. Highway No. 1 while under the influence of intoxicating liquors or drugs in violation of the laws of the State of Georgia. (b) In operating said motor vehicle at a speed greater than 55 miles per hour in violation of the laws of the State of Georgia. (c) Failure to warn pedestrians by blowing horn, making any other signal, or otherwise notifying them of the approach of said automobile. (d) In failing to sound the horn on the automobile upon approaching the Lawson automobile. (e) In operating said automobile in a careless manner. (f) In not having said vehicle under control.'
There was three amendmants to the original petition. The first amendment was as follows: '1a. That Mrs. Alice R. Lawson is the widow of Melvin Lawson and she and said deceased had at the date of his death four children towit: Hughie Gerald Lawson, age 16; James Dannie Lawson, age 12; Mary Alice Lawson, age 9; Linda Sue Lawson, age 6. 2b. That she as such widow is entitled to recover full value of the life of said deceased for the benefit of herself and said children as provided by and in accordance with law. 3c. On the date of the accident in question, prior thereto and at the time of said accident, Elmer Hailey Woods was driving said automobile of Swift & Company and said company was the owner of said automobile. 4d. That at the time of said accident, said Woods was driving said automobile with the permission of said owner, Swift & Company. 5e. That said Woods, as agent, servant or employee of said Swift & Company as herein alleged, was permitted, allowed and encouraged by said company to use said car in entertaining customers, prospective customers and other persons whereby he might obtain business for his employer, said Swift & Company. 6f. That in accordance with said custom and practice of using said car aforesaid, said Woods on the date of said accident, prior thereto and at the time of the same, did use and was using said automobile for the purposes aforesaid. 7g. Paragraph 17 of said original petition is hereby amended by striking the figures '55 miles per hour' and adding the figures '65 miles per hour.' 8h. Paragraph 21 of said original petition is hereby amended by adding the...
