Opinion
32469.
DECIDED MAY 25, 1949. REHEARING DENIED JUNE 10, 1949.
Damages; from Fulton Superior Court — Judge Moore. February 9, 1949.
Neely, Marshall Greene, for plaintiff in error.
Young H. Fraser, contra.
1. "It is not error for the court, in charging a jury, merely to state correctly the contentions made by the allegations of the petition, even though some of the contentions may not be supported by the evidence." Barbre v. Scott, 75 Ga. App. 525 (7) ( 43 S.E.2d 760)." Also Central Truckaway System v. Harrigan, 79 Ga. App. 117 ( 53 S.E.2d 186).
2. Where the plaintiff's evidence shows that the defendant was the owner of the automobile that injured him, and that the person who was operating it at the time of his injury was an employee of the defendant, the presumption arises that the servant was engaged in the master's business and was acting within the scope of the master's business.
3. Although it is proper to prove motive by hearsay, the main facts in a case can not be proved by such evidence. Neither is an unsworn, self-serving statement of an employee provable by third persons in favor of the employer.
4. No error of law having been committed against the defendant and the verdict for the plaintiff being supported by the evidence and approved by the trial court, the judgment must be affirmed.
DECIDED MAY 25, 1949. REHEARING DENIED JUNE 10, 1949.
W. H. Dowis, herein referred to as the plaintiff, sued Hix-Green Company, herein referred to as the defendant, for damages for personal injuries and damages to the plaintiff's automobile. The suit was filed in the Superior Court of Fulton County, and the petition alleged substantially: that, on or about April 24, 1947 the plaintiff was driving his 1940 Studebaker automobile at the intersection of Cain and Hilliard Streets in Atlanta. After he was in said intersection, an automobile of the defendant, operated by Johnnie L. Snead, ran into the left side of the plaintiff's car, causing the plaintiff to sustain severe personal injuries and also damages of $600 to his automobile; and that Johnnie L. Snead at said time and place was an agent and employee of the defendant, and was at said time and place operating said automobile truck, which belonged to the defendant, upon the business of the defendant. The petition further alleged: that said Snead, while operating the said truck of the defendant, operated it into the intersection of Cain and Hilliard Streets, against a stop sign, and crossed said intersection in violation of a valid ordinance of the City of Atlanta, requiring said truck to stop before entering said intersection; that the plaintiff was thrown against the side of the said automobile and the steering wheel thereof, and sustained multiple injuries to his back and side and bruises and contusions over his entire body; and that his chief and main injury was to his spine. The plaintiff alleged further that he sustained a herniated disc, and that his injuries were permanent in their nature; and that he suffered intense pain by reason of said injuries and will continue to suffer for an indefinite period in the future.
The petition alleged that the defendant's servant was negligent in the following particulars, which proximately caused the plaintiff's injuries and damage: (a) in violating a valid ordinance of the City of Atlanta, requiring vehicular traffic to come to a stop before entering the intersection of Cain and Hilliard Streets; (b) in approaching the intersection of two public streets without slackening the speed of said vehicle; (c) in operating a vehicle at an intersection at a rate of speed in excess of fifty-five miles per hour; (d) in failing to give the right of way to a vehicle already in said intersection; and (e) in negligently running into and against the vehicle in which the plaintiff was riding.
The defendant filed its answer, in which it denied that Johnnie L. Snead was its agent and servant at the time and place of the collision, and alleged that at the time and place he was using the automobile truck for a purpose for which he was not authorized — he was on a mission which was purely personal to himself and was acting contrary to the instructions of this defendant. The defendant denied the acts of negligence charged and denied responsibility for the injuries and damage sustained by the plaintiff, if any.
Construing the evidence in its light most favorable to support the verdict, the jury trying the case was authorized to find facts substantially as follows: W. H. Dowis as principal of the Inman Park Boys School in the City of Atlanta was taking a student in his automobile to the Dental College about one o'clock on April 24, 1947, and was traveling west on Cain Street at about 15 to 18 miles per hour, and as he approached the intersection of Cain and Hilliard Streets he looked to his left and did not see any one. He drove into the intersection and turned, and the truck of the defendant came quickly out of Hilliard Street and across a stop sign and hit the left side of the plaintiff's car. Hilliard Street has a stop sign going both ways, and there was no stop sign on Cain Street. The plaintiff's car was turned over, driven down the street in which the truck was going until it hit the curb and a fire plug, ricocheted back into Cain Street, and when the plaintiff came to his senses he was trying to crawl out of the side of his car. The impact of the automobile threw the plaintiff against the left side of the car, striking his head on the door post, and as he thus turned the arm rest on the door struck his back. The truck which struck the plaintiff's car was owned by Hix-Green Company, and was driven by Johnnie L. Snead, a Negro, who was employed by the defendant as truck driver on this pickup and delivery truck.
Homer Renfroe, a service salesman for the defendant, testified that he told Johnnie Snead that, if he were out in the Mellen Battery Company neighborhood, the defendant had a battery over there he wanted, and if they had an armature, to get those two while he was there, these instructions being about 10:30 a. m. He further testified that Johnnie Snead as driver of the pickup truck of defendant would go all over town if he had something to be delivered or picked up, and that there were at least six people at work at the defendant's place of business who had a right to send Johnnie Snead out on trips.
Johnnie L. Snead was used by the defendant as a witness, and testified: His only duties with the defendant were driving this pickup and delivery truck on various errands all over Atlanta, as the occasion arose. He was not instructed by the defendant to make these trips by the most direct route both ways. On the day in question, he had delivered a generator about 9 o'clock in the morning to Mellen Battery Company for the defendant. Snead testified further for the defendant that he left its place of business about 12:30 on the date of the collision, went to Mellen Battery Company, inquired about the generator, and was informed that it was not ready, and for him to drop by about 3 o'clock. Mellen Battery Company is located on Merritts Avenue between Courtland and Piedmont Avenues between three and four blocks from the place of business of the defendant on North Avenue. After leaving Mellen Battery Company, this truck driver went to Piedmont Avenue, this being in the opposite direction from the place of the defendant, and then turned south and drove south along Piedmont Avenue to Houston Street, and then turned left and continued on in an easterly direction on Houston Street until he reached the intersection of Hilliard Street, and then made another left turn and was proceeding north on Hilliard, going back to North Avenue, when the collision occurred at the intersection of Hilliard and Cain Streets.
Although this truck driver had traveled about eleven blocks away from his employer's place of business after leaving Mellen Battery Company, he testified without contradiction that this was the route he always took from Mellen Battery Company returning to the defendant's place of business; that he made no stops after leaving Mellen Battery Company other than for traffic lights until the collision; that this section of town where the collision occurred was in the colored section, but "I didn't know anybody I knew down there. I didn't have a friend down there that day."
Although he testified that his family received relief in various items of food from the Government, that the cards were mailed to his wife, and that his pastor, Jackson Minor, picked the groceries up in his car and took them to the witness's home, the witness denied that he had ever been to the warehouse to pick up these groceries, and denied that he made any statement to Pierce Hand or Lee Graham, coemployees at Hix-Green Company, that day that he was going to pick up potatoes that the Government was giving his family, or that he intended to pick up any groceries while on this trip. His explanation for making this circuitous route in returning to his place of employment was that he always followed this route back to North Avenue and then turned west to his place of employment, and that he liked to go this way.
The defendant did not plead surprise or that it was entrapped by the truck-driver's testimony. In fact, the record indicates that the witness's testimony had been taken in deposition form prior to the date of the trial, and the defendant had notice of what this witness would testify.
The evidence showed that the plaintiff had been injured in some of the ways alleged in his petition.
The jury returned a verdict in favor of the plaintiff for $4250, on which judgment was entered.
The defendant filed its motion for new trial on the general grounds, which was later amended by adding special grounds. The motion for new trial as amended was overruled, and this judgment is assigned as error.
1. Special grounds 1, 2, 3, and 7 contend that the trial court erred in stating to the jury contentions of certain acts of negligence, contained in the petition, which it is insisted were not supported by the evidence. The trial court in the charge made no reference to the particular acts of negligence — including the ones of which complaint is made under these grounds — other than that of reading the acts of negligence charged in the petition. Further along in the charge, the court instructed the jury as follows: "And when you come to pass on the question as to whether or not the defendant was negligent you would be confined to these specifications in which the plaintiff charges negligence, and which have been called to your attention. You would not be authorized to go outside and inquire whether the defendant was or was not negligent in any other manner or particular than those alleged. The law being that if the plaintiff recovers at all he must recover upon the case as he presents it to the jury and to the court in his petition.
"However, in order to recover it is not required of the plaintiff that he prove each and every act or omission of negligence as set forth in the petition. If he shows by the evidence that some one or more of said acts was the proximate cause of the injury complained of and the defendant was negligent therein, the plaintiff would be entitled to recover insofar as this phase of the case is concerned." Further in the charge is this language: "Your method of inquiry would be in determining whether or not the defendant was guilty of negligence; you would take into consideration all the evidence in the case that would satisfy your minds on this question — the time, the place, the circumstances, the surroundings, all that occurred so far as disclosed by the evidence; and then say for yourselves whether or not the defendant, through its servants and employees, was guilty of negligence insofar as negligence is charged in the plaintiff's petition. . . The only negligence, if there was such negligence, that would be considered by you would be such negligence as you believe from the evidence to have been the proximate cause of the injury to the plaintiff." Although the defendant contends that it made an oral request to the court not to charge these acts of negligence unsupported by the evidence, such request was not in accordance with law. Code, § 81-1101. In Barbre v. Scott, 75 Ga. App. 525 (7) (supra), in which there was a timely written request, this court held: "It is not error for the court, in charging the jury, merely to state correctly the contentions made by the allegations of the petition, even though some of the contentions may not be supported by the evidence." See also Central Truckaway System v. Harrigan, 79 Ga. App. 117 (supra).
These assignments of error are without merit.
2. Special ground 4 contends that the court erred in charging the jury that, when the plaintiff's evidence shows that the defendant was the owner of the automobile that injured him, and that the driver operating the machine at the time of the injury was the defendant's servant, the presumption arose that the servant was engaged in the master's business and within the scope of his employment; and that the burden was then upon the defendant to show that the machine was not his or that the driver was not his servant or that the servant was not at the time of the injury engaged in the prosecution of the defendant's business, the defendant contending that this placed upon it a greater burden than was required by law.
In Dawson Motor Co. v. Petty, 53 Ga. App. 746, 749 ( 186 S.E. 877), it is held as follows: "When the plaintiff showed by competent uncontradicted evidence that the defendant was the owner of the automobile that injured him and that the person operating it was, at the time of the injury, in the defendant's employment, the presumption arose that the servant was engaged in the master's business and within the scope of his employment; and the burden was then on the defendant to show that the person operating the machine was not his servant, or was not at the time of the injury engaged in the business of the master." See also Gallagher v. Gunn, 16 Ga. App. 600 ( 85 S.E. 930); Brown v. Meikleham, 34 Ga. App. 207 ( 128 S.E. 918); Moore v. DeKalb Supply Co., 34 Ga. App. 375 ( 129 S.E. 899); Perry v. Lott, 38 Ga. App. 729 ( 145 S.E. 479); Haygood v. Bell, 42 Ga. App. 602 ( 157 S.E. 239); Mitchem v. Shearman Concrete Pipe Co., 45 Ga. App. 809 ( 165 S.E. 889); Fielder v. Davison, 139 Ga. 509 ( 77 S.E. 618).
The excerpt from the charge complained of in this special ground of the amended motion for a new trial is not error for any reason assigned therein.
3. Special grounds 5 and 6 contend that the court erred in excluding from evidence a postal card marked defendant's exhibit No. 2, which was a notice from Wellborn R. Ellis, Administrator of the Fulton County Department of Public Welfare, addressed to the wife of Johnnie Snead, at 138 Chestnut St. N.W., Apt. 112, Atlanta, notifying her that she would be entitled to receive on April 24th, 1947, 72 pounds of Irish potatoes at the Commodity Warehouse, 320 North Highland Avenue, N.E.; and certain conversations to which two coemployees would have testified, between them and Johnnie Snead on the morning of the collision, to the effect that he stated to them that he was going by to pick up some potatoes that day which the Government was going to give him, the defendant contending that this evidence was offered for the purpose of showing conduct on the part of Snead at the time of the collision.
While it is competent to prove conduct or motive by hearsay, the fact which the defendant sought to prove by this hearsay evidence was the very fact on which the defense turned, namely, whether the truck driver was on an errand of his own or on business other than the employer's. 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.
At the time this conversation was offered, the truck driver had not testified. Later he testified, not for the plaintiff, but as a witness for the defendant.
Such hearsay was self-serving so far as the defendant was concerned, and for that reason inadmissible. In 22 C. J. 195, 229, it is said: "The favorable, unsworn statement of an employee is not evidence for his employer, the rule being the same in this respect whether the statement was oral or in writing." Also in 22 C. J. 194, 228, 229, it is said: "The unsworn declarations of an agent are not admissible on behalf of the principal, even though the agent is dead. Accordingly, the favorable, unsworn statements of one codefendant, copartner, for the other, or of a guardian for his ward, a principal for his surety, or a husband or wife for his or her spouse are rejected. The rule is the same whether the statements of the agent are oral or in writing, and hence letters written by an attorney or other agent, to his principal or to another person on behalf of his principal are excluded where the statements therein are favorable to the principal."
Neither of these grounds has merit.
4. Under the general grounds, the defendant contends that the evidence shows that the truck driver in question was not in the scope of his employment at the time of the injury, but had deviated from his master's employment and had gone off on a personal mission of his own. One of the defendant's witnesses testified that he had requested Johnnie Snead to pick up certain articles at Mellen Battery Company during that day if he were over that way. He also testified that this truck driver made trips all over town. It was admitted by the defendant that the truck in question belonged to it, and that said truck driver was its employee, employed to drive the truck in making deliveries and pickups over town. Snead was used as a witness for the defendant, and he testified against it that he was on no personal mission of his own, but that he was making his usual roundabout turn and was returning to his place of employment at the time of the collision. The verdict was supported by the evidence.
The judgment of the trial court overruling the motion for a new trial as amended is without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J. concur.