Opinion
34466.
DECIDED MARCH 14, 1953.
Action for damages; nonsuit; from Lumpkin Superior Court — Judge Edmondson. October 22, 1952.
G. Seals Aiken, F. L. Breen, for plaintiff in error.
Wm. P. Whelchel, contra.
The evidence presented a jury questions as to whether the defendant Seitz was an agent of the defendant Truelove at the time of the collision, and the court erred in granting a nonsuit as to the defendant Truelove.
DECIDED MARCH 14, 1953.
Thurston Hatcher sued Lloyd Douglas Seitz and Harold Truelove for damages resulting from an automobile collision allegedly due to the defendant's negligence. The petition alleged that, at the time of the collision, the defendant Seitz was driving the defendant Truelove's automobile, that Truelove was a passenger in the automobile, and that the automobile was being operated by Seitz under Truelove's supervision, direction, and control. After the introduction of certain of the plaintiff's evidence the court entered the following order: "The plaintiff having failed after the introduction of all his evidence respecting agency, in the court's opinion, to make out a case respecting agency between the defendant Lloyd D. Seitz as agent and defendant Harold Truelove as principal, a nonsuit as to the defendant Harold Truelove, over objections of plaintiff, is adjudged ex mero motu, and the issue as to defendant Lloyd D. Seitz is withdrawn from the consideration of the jury." To such order the plaintiff excepts.
The plaintiff in error contends that the court erred in granting a nonsuit because the evidence presented a question for the jury as to agency. We agree. The plaintiff testified that the defendant Truelove told him, "Mr. Seitz was driving the car for me." The word "for" as used with its context in such statement means "on behalf of" the defendant Truelove. Chelsea Corp. v. Steward, 82 Ga. App. 679, 686 ( 62 S.E.2d, 627); Young v. Wilson, 183 Ga. 59, 74 ( 187 S.E. 44); 17 Words Phrases, p. 215. Truelove denied having made such a statement and testified that Seitz had merely borrowed the automobile for his own personal use. Nothing else appearing, the jury could have believed the plaintiff and disbelieved all the evidence tending to disprove agency and could have found that at the time of the collision Seitz was the defendant Truelove's agent acting for and on behalf of Truelove.
The plaintiff predicated Truelove's liability for the damages on the theory that Truelove was a passenger in his automobile when the collision occurred, and that the automobile was being operated by Seitz under Truelove's direction and control. While the evidence showed that Truelove was not a passenger in the automobile when the collision occurred, the evidence introduced by the plaintiff to show agency was not objected to, and the petition will be treated as being amended to allege such agency. Bland v. Davison-Paxon Co., 83 Ga. App. 468, 473 ( 64 S.E.2d, 350). This would not be allowing the plaintiff to set up a new cause of action, the relationship alleged as between Seitz and Truelove and the relationship tended to be proved by the evidence both being forms of agency coming within the doctrine of respondeat superior. Baker v. Goddard, 205 Ga. 477, 478 (1) ( 53 S.E.2d 754); Trawick v. Chambliss, 42 Ga. App. 333, 334, (3) ( 156 S.E. 268); Read v. City Suburban Ry. Co., 115 Ga. 366 (4) ( 41 S.E. 629); Lytle v. Hancock County, 19 Ga. App. 193 ( 91 S.E. 219); Watkins v. Brown, 14 Ga. App.
99 (2) (80 S.E. 212). See also Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 ( 58 S.E.2d 559).
It is not necessary to consider the other assignments of error under the ruling made above.
The court erred in awarding the nonsuit.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.