Opinion
40393.
DECIDED OCTOBER 18, 1963. REHEARING DENIED NOVEMBER 1, 1963.
Action for damages. Gwinnett Superior Court. Before Judge Pittard.
Kilpatrick, Cody, Rogers, McClatchey Regenstein, Barry Phillips, Thomas B. Branch, III, for plaintiff in error.
Wheeler, Robinson Thompson, B. Carl Buice, Webb Fowler, W. Howard Fowler, J. Corbett Peek, Jr., contra.
A suit was filed by the plaintiff seeking damages allegedly resulting from a highway collision between the plaintiff's automobile and a front-end loader tractor owned by defendant Arnold and being operated at the time of the collision by the defendant Sharp. The petition alleged that a gravel loading yard adjacent to the highway was used by the defendants in their respective businesses; that the tractor was owned by defendant Arnold and was placed by him in the gravel yard to be used by the defendants in this area; and that at the time of the collision defendant Sharp was operating the tractor as the agent of Arnold and was acting within the scope of the agency. Defendant Arnold filed several demurrers; the substance of all of them is whether the agency relationship is adequately pleaded. Error is assigned on the overruling of these demurrers. Held:
The defendant concedes that a general averment of agency is sufficient and states a traversable fact, Savannah Electric Co. v. McCants, 130 Ga. 741 (2), ( 61 S.E. 713), but cites cases holding that when there is a general averment and also specific allegations which negative it, the specific allegations will prevail. Daniel v. Excelsior Auto Co., 31 Ga. App. 621 ( 121 S.E. 692). The decisions relied on by the defendant are not applicable, for the reason that in the present case the specific allegations in no way negate the general averment of agency.
The facts that the defendant Sharp used the gravel loading area in his own business, and may have used Arnold's tractor in his own business are not inconsistent with the fact that Sharp was operating the tractor as Arnold's agent at the time of the collision. This is true even if a joint venture between the defendants be implied from the petition, as argued by the defendant. Bowman v. Fuller, 84 Ga. App. 421, 425-427 ( 66 S.E.2d 249).
The trial court did not err in overruling the demurrers of the defendant Arnold.
Judgment affirmed. Bell, P. J., and Pannell, J., concur.