Wilson v. Quick Tire Service
| Decision Date | 13 May 1924 |
| Docket Number | 14780. |
| Citation | 123 S.E. 733,32 Ga.App. 310 |
| Parties | WILSON v. QUICK TIRE SERVICE. |
| Court | Georgia Court of Appeals |
Rehearing Denied June 10, 1924.
Syllabus by the Court.
The judge did not err in any of his rulings rejecting evidence of which complaint is made in the motion for a new trial.
If a servant employed in a garage, while not engaged in the prosecution of his master's business and without the knowledge or consent of the master and against his instructions, takes an automobile of the master for the purpose of going to his own breakfast, and, while so using it, negligently injures a person in the street, the master will not be liable.
Error from Superior Court, Fulton 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 the knowledge 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).
It is necessary only to discuss the ruling stated in the second headnote. This case in its facts is somewhat similar to that of Gillespie v. Mullally, 30 Ga.App. 118, 117 S.E. 98. The first headnote 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...
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