Opinion
33035.
DECIDED JUNE 21, 1950. REHEARING DENIED JULY 26, 1950.
Damages; from Fulton Civil Court — Judge Parker. February 13, 1950.
C. Baxter Jones Jr., Powell, Goldstein, Frazer Murphy, for plaintiffs in error.
H. Dean Minor, Isaac M. Wengrow, contra.
1. Where it appears from the evidence that a servant of the defendants, not engaged as a driver of their motor cars, operates a motor truck belonging to the defendants which truck had been loaned to the servant over the week end, when he is not engaged in his employment with them and on a purely private mission, although he had such motor vehicle on that day with the permission of one of the defendants and, although it appeared that on that day and at the time he negligently drove such truck into the car of the plaintiff, injuring the plaintiff, such servant was on an errand which in part involved transacting some business for the defendants, but which he was not directed expressly or by implication to do by the defendants on that occasion and for which he was not to use such truck, such servant was at the time not in the prosecution of the defendants' business or within the scope of his employment, and a verdict for the plaintiff against the defendants was contrary to the law and the evidence and must be set aside on motion for new trial.
2. Where such servant, under the facts above narrated, is found operating such truck, no presumption arises that he was engaged in operating the same in his masters' business or within the scope of his employment.
DECIDED JUNE 21, 1950. REHEARING DENIED JULY 26, 1950.
W. D. Gazaway brought suit in the Civil Court of Fulton County against La Felle Ruff and Carolyn Self, as individuals, and as a partnership trading as Freight Delivery Service, in which he sought to recover certain damages alleged to have been sustained when his automobile was struck by a motor truck, belonging to the defendants, which was being negligently operated at the time of the accident by their servant and employee, one George Albert Garrison. It was alleged that this servant of the defendants was in and about their business at the time of his so running into the plaintiff's automobile. The defendants denied the material allegations of the plaintiff's petition. The case came on for trial in said court before a jury, and after the introduction of the evidence and the charge of the court to the jury, a verdict was rendered in the plaintiff's favor. The defendants moved for a new trial on the general grounds and by amendment added two special grounds, in which they assigned error on certain portions of the court's charge. These excerpts are:
"Where the plaintiff's evidence shows that the defendants were the owners of the vehicle that injured the plaintiff and that the person operating the machine at the time of the injury was the defendants' servant, the presumption arises that the servant was engaged in the master's business and that he was acting within the scope of his employment. When the plaintiff shows that, then the burden shifts to the defendants to show that the operator of the vehicle was not his servant, or that the servant, at the time of the injury was not engaged in the prosecution of the defendants' business" and then charged "Now that [referring to the above excerpt] is a legal presumption . . and it can be overcome by testimony produced within your presence and hearing. It is subject to being rebutted. If you find that the presumption I have just stated to you has been overcome by testimony produced within your presence and hearing it will be your duty to return a verdict for the defendants."
The defendants assigned these charges as error in that the evidence affirmatively showed that their servant and employee was engaged in a personal errand at the time he ran into the plaintiff's automobile and also that such servant was not engaged by them for the purpose of operating any motor vehicle for them and that his employment with the defendants consisted of duties other than the operation of any of their motor vehicles. The defendants aver that said charges were erroneous in that thereby the jury were authorized to find that such presumption existed under the facts in evidence, whereas such facts under the law were not sufficient to create the presumption stated by the court. The defendants urged that even if such a presumption could be created under the facts, it was rebutted conclusively and as a matter of law under the undisputed evidence. They urged that said charges were not applicable and did not constitute an accurate statement of the law.
The evidence relative to the employment and duties of the servant of the defendants and to the use to which the defendants' motor truck was being put by such servant at the time of the accident was substantially as follows:
The defendants conceded that the evidence adduced was sufficient to authorize a verdict for the plaintiff had the action been one against their servant, but they do not concede that the evidence was sufficient to authorize the jury to find any relationship between their said servant and themselves which would permit a verdict in the plaintiff's favor against them to stand. The evidence before the jury relevant to the relationship between their servant, who was operating the truck of the defendants at the time it struck the plaintiff's car and themselves is as follows:
The only witness on this question was Garrison, the defendants' said servant, who testified for the plaintiff. The witness testified that the accident occurred on Sunday, around noon, January 2, 1949; that at that time he was employed by the defendants; that on this Sunday he was going to a place where he formerly worked to "pick up a man that worked there," who was going to have lunch with him; that he was also going to this place with the thought in mind that he would see some men that used to work with him and have them to call on the defendants' manager relative to working for the defendants; that the defendants' manager had previously told the witness to see if he could locate some suitable men that might desire to work for the defendants and send them to him to be interviewed; that on the Saturday before the accident on Sunday, the witness had obtained permission from one of the defendants to use this truck, but that this defendant did not direct the witness to take the truck over the week end to perform any duty on behalf of the defendants; that the defendants did not ask the witness to go hire some men for them; that as to why he got the truck over this week end, he got the same to use in going on a hunting trip that Saturday afternoon; that said defendants did not give him any duty at all to do for them over that week end; that defendants' manager did not give him any duty at all for defendants that would require the witness to use the truck; that the witness was not instructed by anyone connected with the defendants to use that truck for the defendants that week end; that during the period of his employment the witness was in training to take over a sub-office of the defendants; that no one connected with the defendants knew anything at all about his going on that week end to see any men relative to their going to work for the defendants; that when he had talked with the defendants' manager on a previous occasion "the discussion was that if he found anybody that was satisfactory, why he would send them to him"; that he "had no instructions to look for anybody"; that the witness told the defendants' said manager if he found any one he would send them to him; that he and defendants' manager never did at any time talk about the witness using the defendants' truck to go and find any men for the defendants — the truck was not discussed at all, either for that week end or any other time; that neither of the defendants nor their manager ever gave the witness any authority to use that truck at any time on their business; that the witness was not hired to drive a truck, but as a dispatcher; that he did not possess any driver's license; and that the truth was that he just asked one of the defendants for the loan of the truck for his private and personal business in going hunting that week end and only for that purpose did he obtain this truck. The witness testified that the defendants were opening a new place of business on Monday, January 3, and he was to be in charge of this place, and "I had already had the men lined up from the other terminal, but some of them were to be replaced, as I understand. I was looking for replacements."
It is true that the witness testified on direct examination that "at that time I was in the employ of these people (defendants). It was the truck of Freight Delivery Service, and I was merely driving it; I did have a collision with the car driven by the plaintiff." On cross-examination the witness stated he meant by this statement on direct examination that "they were my general employers. I did not mean to say I was on a mission for them at that time on Sunday."
The trial judge overruled the defendants' motion for a new trial, as amended, and to this judgment the defendants except.
The evidence affirmatively discloses the following: The defendants were engaged in the business of hauling freight by motor trucks. In their employ as a dispatcher of trucks at a terminal depot of the defendants was one Garrison. He was not employed to drive a truck and had nothing to do with operating the defendants' motor vehicles. On a Saturday morning this servant of the defendants borrowed from one of the defendants a motor truck belonging to them for the express purpose of being used by him on that afternoon for a hunting trip. On the Sunday following, around noon, this servant of the defendants drove this truck of the defendants to see a friend of his at a place where the servant had formerly worked in order to have lunch with this friend. The servant had in mind seeing some men relative to going to work for the defendants. While on this trip, he drove the defendants' motor truck into the automobile of the plaintiff. In these circumstances, the evidence demanded a finding that the defendants' servant and employee was not operating their motor truck, at the time he drove the same into and against the automobile of the plaintiff, within the scope of his employment with the defendants and was not engaged in any business for them, but was engaged on a private errand or mission. The fact that this servant of the defendants was driving the defendants' motor truck, which had been loaned to him to drive on a hunting trip, would not, in the absence of other facts, authorize any finding that the defendants were chargeable with any act of the servant in the operation of such truck. Also, the mere fact that the defendants' manager had suggested to defendants' servant that if he could find any men who would be interested in working for the defendants to have such men come to see him, together with the fact that on the occasion this servant drove defendants' truck against the plaintiff's car, such servant had in mind seeing some men relative to working for the defendants was insufficient to authorize the jury to find that such servant was engaged in business for the defendants and within the scope of his employment when he injured the plaintiff.
The liability of a master for torts committed by his servant is limited to such as are affirmatively shown to have been committed in the prosecution of the master's business and within its scope. Lee v. Nelms, 57 Ga. 253. To render a master liable for his servant's tort, the servant must be acting both in the prosecution and within the scope of the master's business. See Code, § 105-108; Selman v. Wallace, 45 Ga. App. 688 ( 165 S.E. 851).
The principle laid down in Fielder v. Davison, 139 Ga. 509 ( 77 S.E. 618), and followed by several cases of both this court and the Supreme Court that, "if a chauffeur negligently injures a person by the operation of his master's automobile, the master will be held liable for the tort of his servant, if done by his command or in the prosecution of his business," is not at all applicable in the instant case. Rather, the principle set out in the 4th headnote of that decision that if a chauffeur, while not engaged in the prosecution of his master's business, takes the automobile of the master for the purpose of making a personal trip, and while making this trip negligently runs into the plaintiff's car and damages him, the master is not liable, applied.
Such cases as Hotel Equipment Co. v. Liddell, 32 Ga. App. 590, 600 ( 124 S.E. 92), Perry v. Lott, 38 Ga. App. 729 ( 145 S.E. 479), Graham v. Cleveland, 58 Ga. App. 810 ( 200 S.E. 184), and others are clearly inapplicable under the undisputed facts in evidence. Here the evidence affirmatively discloses that the defendants' servant, Garrison, was not operating the truck either about their business or within the scope of his employment with the defendants. He was not employed to drive the defendants' motor vehicle. He did not even have a driver's license. He was admittedly engaged on a personal errand at the time. Such servant, while in the general employment of the defendants, was not directed, expressly or impliedly, to take this truck with him on the occasion involved for the purpose of performing any service for the defendants. See Hall v. Cassell, 79 Ga. App. 7, 8 ( 52 S.E.2d 639).
The fact that the servant was a witness and that on direct examination testified that he was in the defendants' employ when he drove their truck against the plaintiff's car is not sufficient to create any inference or presumption that such servant was at the time engaged in the business of the defendants or within the scope of his employment with them, particularly when he testified on cross-examination that he was not on duty for the defendants when this accident took place, that he meant, by stating on direct examination that he was in the employ of the defendants at the time, that they were his employers during that time but that at the time he so ran into plaintiff's car he was engaged on a purely personal mission for himself and that he asked for and obtained permission to use this truck for that purpose. See Evans Pennington v. Scofields Sons Co., 120 Ga. 961 ( 48 S.E. 358).
It follows that the verdict for the plaintiff was not authorized by the evidence and that the verdict in his favor was contrary to the law and the evidence. Accordingly the trial judge erred in overruling the defendants' motion for a new trial on the general grounds.
In the above view, it becomes unnecessary to pass upon any of the other assignments of error.
Judgment reversed. MacIntyre, P.J., and Townsend, J., concur.