Wilson v. Quick Tire Serv.

• Citation: 32 Ga.App. 310,123 S.E. 733
• Decision Date: 13 May 1924
• Docket Number: (No. 14780.)
• Parties: WILSON. v. QUICK TIRE SERVICE.
• Court: United States Court of Appeals (Georgia)

32 Ga.App. 310

123 S.E. 733

WILSON.

v.QUICK TIRE SERVICE.

(No. 14780.)

Court of Appeals of Georgia,

Division No. 1.

May 13, 1924.

Rehearing Denied June 10, 1924.

(Syllabus by the Court.)

Error from Superior Court, Pulton County; W. D. Ellis, Judge.

Action by Spencer Wilson, by next friend, against the Quick Tire Service. Judgment for defendant, and plaintiff brings error. Affirmed.

Spencer Wilson, by her father as next friend, sued the Quick Tire Service, a corporation, for damages for personal injuries received by her when struck by an automobile of the defendant. The evidence for the plaintiff showed the manner and extent of her injuries, and she endeavored to show that at the time of her injury the driver of the automobile was using it for the business of the defendant. The evidence for the defendant showed that Jackson, the driver of the automobile, was in the employ of the defendant, but at the time of the injury was not using it on business for the defendant, but was using it to go to his own breakfast; that he had no authority to use the car for this purpose, but was so using it without theknowledge or consent of the defendant and against the defendant's express orders. When the evidence was closed, the judge directed a verdict for the defendant. A motion for a new trial was filed and overruled, and the plaintiff excepted.

Schrimper & Baumstark, and C. Don Miller, all of Atlanta, for plaintiff in error.

Underwood, Pomeroy & Haas, of Atlanta, for defendant in error.

BLOODWORTH, J. (after stating the facts as above). [2] It is necessary only to discuss the ruling stated in the second head-note. This case in its facts is somewhat similar to that of Gillespie v. Mullally, 30 Ga. App. 118, 117 S. E. 98. The first head-note in that case is as follows:

"The evidence being positive and uncontradicted that when the defendant's automobile struck and injured the plaintiff it was being operated without the knowledge or consent of the defendant or of the proprietor of the garage in which the defendant had stored it, and that the person driving it was without authority, express or implied, to do so, the court did not err in directing a verdict for the defendant."

The same principle is anounced in Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338; Garner v. Souders, 20 Ga. App. 242, 92 S. E. 965; Dougherty v. Woodward, 21 Ga. App. 427, 94 S. E. 636. In the case of Hartnett v. Gryzmish, 218 Mass. 258, 105 N. E. 988, the chauffeur was returning from his home, where he had gone in the car of his employer for a noon meal. The chauffeur testified that he had been told not to use the automobile for the purpose of going to his noon meals. The Supreme Court of Massachusetts held that the facts did not warrant "a finding that at the time of the accident the chauffeur was acting within the scope of his employment by the defendant." In the case of Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016. 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227, a chauffeur used the automobile of his master to go to his midday meal, and struck and killed a woman, and the Supreme Court of Wisconsin held:

"The owner of an automobile is not liable for injuries caused by his chauffeur's negligent operation of...