Yellow Cab Co v. Gen. Lumber Co, (No. 17032.)

• Citation: 134 S.E. 190,35 Ga.App. 620
• Decision Date: 20 July 1926
• Docket Number: (No. 17032.)
• Parties: YELLOW CAB CO. v. GENERAL LUMBER CO.
• Court: United States Court of Appeals (Georgia)

35 Ga.App. 620

134 S.E. 190

YELLOW CAB CO.

v.GENERAL LUMBER CO.

(No. 17032.)

Court of Appeals of Georgia,

Division No. 2.

July 20, 1926.

(Syllabus by Editorial Staff.)

Error from City Court of Albany; Clayton Jones, Judge.

Suit by the General Lumber Company against the Yellow Cab Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Bryan & Middlebrooks, of Atlanta, and W. H. Burt, of Albany, for plaintiff in error.

Milner & Farkas, of Albany, for defendant in error.

Syllabus Opinion by the Court.

BELL, J. [1] 1. In a suit for damages to the plaintiff's truck, caused by a collision between the truck and the defendant's cab, allegations (in the order here stated) that the defendant was indebted to the plaintiff in the amount stated as damage, "for the reasons hereinafter set out, " and that the "negligence of defendant company complained of" was "that the driver of said cab was negligent" in specified particulars, were, as against an oral motion in the nature of a general demurrer, sufficient to show by implication that the driver of the cab was the servant of the defendant, acting within the scope of his employment, at the time and place in question. Otherwise the defendant could not have been indebted, and the driver's negligence could not have been "the negligence of the defendant company, " as alleged in the petition. See Gilmer v. Allen, 9 Ga. 208 (4); Lewis v. Amorous, 3 Ga. App. 50 (1), 53, 59 S. E. 338; Gallagher v. Gunn, 16 Ga. App. 600 (1), 85 S. E. 930; Southern Paramount Pictures Co. v. Gaulding, 24 Ga. App. 478 (3), 101 S. E. 311; Ryle v. Central Ga. Ry. Co., 30 Ga. App. 737 (4), 119 S. E. 342; Fielder v. Davison, 139 Ga. 509, 77 S. E. 618; Swift & Co. v. Bleise, 63 Neb. 739, 89 N. W. 310, 57 L R. A. 147; S. A. L. Ry. v. Pierce, 120 Ga. 230, 47 S. E. 581; 39 C. J. 1352, § 1575.

Whether or not the present case may be distinguished from Gardner v. Western U. Telg. Co., 14 Ga. App. 403 (2), 81 S. E. 259, the decision in that case was by two judges, and is not binding as authority.

2. A plea by the defendant, which alleged that after the collision and prior to the institution of the plaintiff's suit the parties entered into "an agreement of settlement in full for the damages sued for in the plaintiff's petition, " the terms of which were that the plaintiff would pay to the defendant for all damages sustained by the defendant as a result of the collision, and that the defendant in turn would pay to the plaintiff for the damages sustained by the plaintiff as a result thereof, but which plea, although averring a performance of the agreement by the plaintiff, failed to show performance thereof by the defendant, or that the defendant's mere promise was made and accepted in satisfaction of the tort, set forth no valid defense, and was properly stricken on motion. Molyneaux v. Collier, 13 Ga....