But such hearsay evidence is not admissible to prove the crime." Hix-Green Co. v. Dowis, 79 Ga. App. 412, 419 ( 53 S.E.2d 601) (1949); Germany v. State, supra. At the time the State offered the testimony of the officer, the trial court instructed the jury that the officer's testimony was admissible solely for the purpose of explaining his conduct.
His testimony as to what he saw while conscious was complete and his belief that the money was taken from Mrs. Tarlyn's purse could only have come from hearsay or suspicion. As was correctly observed in Hix-Green Co. v. Dowis, 79 Ga. App. 412, 419 ( 53 S.E.2d 601) (1949): "To illustrate, it is proper for peace officers to testify that a certain person is reported to be handling liquor, in explaining why a search warrant was procured and why a raid was made. But such hearsay evidence is not admissible to prove the crime.
"To illustrate, it is proper for peace officers to testify that a certain person is reported to be handling liquor, in explaining why a search warrant was procured and why a raid was made." Hix-Green Co. v. Dowis, 79 Ga. App. 412, 419 ( 53 S.E.2d 601) (1949). This principle was recently approved in Germany v. State, 235 Ga. 836 (2) ( 221 S.E.2d 817) (1976).
The trial court's grant of a summary judgment for the defendant was reversed on appeal. The following is an excerpt from this court's opinion: "The fact that this defendant owned the automobile involved in the fatal occurrence and that its employee was driving the vehicle at the time, was sufficient to raise a presumption that the employee was operating the defendant's automobile within the scope of his employment. Dawson Motor Co. v. Petty, 53 Ga. App. 746 (1) ( 186 S.E. 877); Hall v. Cassell, 79 Ga. App. 7 ( 52 S.E.2d 639); Hix-Green Co. v. Dowis, 79 Ga. App. 412 (2) ( 53 S.E.2d 601); Fielder v. Davison, 139 Ga. 509 ( 77 S.E. 618). This presumption is a rebuttable one, but `in order to overcome it as a matter of law the evidence of the defendant should be clear, positive, and uncontradicted that the servant was not at the time in the prosecution of his master's business or acting within the scope of his employment.' Abelman v. Ormond, 53 Ga. App. 753, 761 ( 187 S.E. 393). `Where there are circumstances developed by the evidence other than those which gave rise to the presumption from which the jury might legitimately infer that the servant was acting within the scope of his employment the presumption is not overcome as a matter of law even though the master and servant positively testify that what he was doing was without the scope of his employment. The issue is generally one for the jury.' F. E. Fortenberry Sons, Inc. v. Malmberg, 97 Ga. App. 162, 166 ( 102 S.E.2d 667).
Moreover, it is not error to state the contentions of a party as disclosed by his pleadings, even if unsupported by the evidence. Hix-Green Co. v. Dowis, 79 Ga. App. 412 ( 53 S.E.2d 601); Barbre v. Scott, 75 Ga. App. 524 (7) ( 43 S.E.2d 760); Mayes v. Simons, 189 Ga. 845, 850 ( 8 S.E.2d 73); Sirmans v. Sirmans, 220 Ga. 712 (3), supra. Also it may have been found by the jury that the drowning resulted from nobody's negligence; that even though negligence existed, it was not the cause of the boy's death.
The fact that this defendant owned the automobile involved in the fatal occurrence and that its employee was driving the vehicle at the time, was sufficient to raise a presumption that the employee was operating the defendant's automobile within the scope of his employment. Dawson Motor Co. v. Petty, 53 Ga. App. 746 (1) ( 186 S.E. 877); Hall v. Cassell, 79 Ga. App. 7 ( 52 S.E.2d 639); Hix-Green Co. v. Dowis, 79 Ga. App. 412 (2) ( 53 S.E.2d 601); Fielder v. Davison, 139 Ga. 509 ( 77 S.E. 618). This presumption is a rebuttable one, but "in order to overcome it as a matter of law the evidence of the defendant should be clear, positive, and uncontradicted that the servant was not at the time in the prosecution of his master's business or acting within the scope of his employment.
Coleman v. Allen, 79 Ga. 637 (1) ( 5 S.E. 204, 11 ASR 449). And, as was held in Smoot v. State, 160 Ga. 744, supra, the determination as to whether there is probable cause is not to be made by one who applies for issuance of the warrant; it must be made by the magistrate from a consideration of the facts submitted under oath. It must exist before the search is made, and can not be supplied by after-discovered facts. As to the standard of the evidence which the magistrate may act upon in the determination of probable cause and issuance of a search warrant, Judge Townsend gave some indication when he observed in Hix-Green Co. v. Dowis, 79 Ga. App. 412, 419 ( 53 S.E.2d 601) that "it is proper for peace officers to testify that a certain person is reported to be handling liquor, in explaining why a search warrant was procured and why a raid was made. But such hearsay evidence is not admissible to prove the crime.
[citations]. It was not a charge submitting issues to the jury but merely told the jury what minimum facts with respect to the defendant's negligence the plaintiff would have to prove in order to recover." See also SouthernR. Co. v. Bullock, 42 Ga. App. 495, 498 (3) ( 156 S.E. 456), and Hix-Green Co. v. Dowis, 79 Ga. App. 412, 416 (1) ( 53 S.E.2d 601), and cits. The charge here complained of stated a general proposition which could hardly ever be error in a case like this where more than one act of negligence has been charged against the defendant as the basis for the plaintiff's right to recover.
Where an employee, who is employed for the special purpose of operating a truck for his master, is found driving the truck in the usual manner a presumption arises that he is acting within the scope of his authority. Fielder v. Davison, 139 Ga. 509 ( 77 S.E. 618); Hix-Green Co. v. Dowis, 79 Ga. App. 412 ( 53 S.E.2d 601); Jump v. Anderson, 58 Ga. App. 126 ( 197 S.E. 644). This is true because if the employee is not within the scope of his employment, this fact is usually peculiarly within the knowledge of the employer.
See Henderson v. State, 210 Ga. 680, 683 ( 82 S.E.2d 638). The evidence was not admissible to show the substantive fact that the deceased was sitting on the tracks with his head in his hands. Hix-Green Co. v. Dowis, 79 Ga. App. 412 ( 53 S.E.2d 601). 2.