1. The evidence did not authorize the verdict and judgment for the plaintiff, and the trial court erred in denying the motion for new trial on the general grounds.
2. The judgment of the trial court being reversed because the evidence was not sufficient to support the verdict, the special ground of the motion for a new trial is not considered.
Chanticleer & Company sued George W. Windsor for damages alleged to have been inflicted to the plaintiff's truck by a truck of the defendant, allegedly driven by the defendant's agent and servant while acting within the scope of his employment. It was alleged that the defendant knew, prior to employing the servant who Was operating his truck at the time the plaintiff's truck was damaged, that the driver had no driver's license and had a prior criminal record. The nature of the criminal record was not disclosed by the petitioner. The defendant filed an answer denying liability. On the trial the evidence made substantially the following case: The defendant had in his employ one Jesse Lee Rhodes. He was not a truck driver for the defendant and had never driven a truck for him before. The defendant did not inquire as to whether he had a driver's license or not, but in the afternoon on the day of the collision turned his Chevrolet truck over to Rhodes and two other of his employees at a point "about a mile out of Monticello on the Forsyth road," and told them to take the truck to his sawmill camp, which was 6.7 miles south of Monticello on the Forsyth road, and let it stay in the camp. The collision in question occurred on the road between Monticello and Mansfield while the defendant's truck was being driven in a northerly direction and away from Monticello and the saw-mill camp, at a point some 12 or 14 miles from the camp where the defendant had instructed Rhodes to drive the truck, and at 11:30 or 12 o'clock at night. Forsyth and the sawmill camp mentioned are to the south or southwest of Monticello, while Mansfield and the scene of the collision are to the north. The defendant testified without contradiction that neither Rhodes nor any of his employees who were with him at the time he turned the truck over to them had any authority from him or business of his requiring them or the truck to be at the scene of the collision. The defendant admitted that he knew that Rhodes had a prison record before he came to work for him. The evidence as to the collision showed that the defendant's truck, while meeting the plaintiff's truck, was being operated on the left side of the road, ran the plaintiff's truck off of the road, and collided with it, causing severe damage to both vehicles. The jury returned a verdict for the plaintiff for $2,500; the defendant made a motion for new trial on the general grounds and one special ground, which was denied, and the exception here is to that order.
1. As may be seen from the resume of the evidence, there was absolutely no basis upon which the defendant could be held liable on the theory of respondeat superior. While ordinarily this is a question for the jury to decide, the evidence in this case did not, in any view, authorize a finding that the driver of the defendant's truck was acting within the scope of his employment at the time of and at the place of the collision. Under the evidence this was not a case of deviation, but of complete departure from the scope of the employment. Reddy-Waldhauer Maffett Co. v. Spivey, 53 Ga. App. 117 (1) (185 S. E. 147).
Neither can the defendant be held liable upon the theory that he was negligent in the selection of the employee. The only basis for the plaintiff's assertion of liability on the part of the defendant in this respect rests on the evidence that the defendant knew that the employee had a criminal record, and evidence that the employee had pleaded guilty and been convicted of larceny from the house in 1935, burglary in 1939, and cheating and swindling in 1944. However, there was no direct evidence that the defendant knew of the specific crimes of which the employee had been convicted, but only that he knew that Rhodes had served a prison sentence. Assuming, but not deciding, that to employ one and to entrust him with possession and control of a large lumber truck, knowing that he had a prison record, constitutes negligence on the part of the employer in the selection of the employee, and that such facts authorize a finding that the employee with such a criminal record was incompetent in some particular--no connection between such incompetence and the negligence of the employee which caused the injury to the plaintiff is shown by such evidence. As was said in Camilla Cotton Oil &c. Co. v. Walker, 21 Ga. App. 603 (3) (94 S. E. 855): "It is incumbent upon the injured servant . . . except where the employer is a railroad company, to show the following facts: first, that the fellow servant was incompetent; [and] second, that the injury complained of resulted directly or proximately from such incompetency." (Italics ours.) While this ruling was made in a case involving an application of the fellow-servant rule, it is nevertheless applicable in a case such as the instant one where a third person has been injured by the negligence of the servant and is seeking to hold the master liable on the basis of his negligence in selecting the agent or servant who inflicted the injury. It cannot be said that to employ one known to have pleaded guilty of larceny from the house, guilty of burglary, and guilty of cheating and swindling, can be negligence with respect to the ability of such employee to drive an automobile or a truck.
The failure of a driver of an automobile or motor truck to have a driver's license, where it does not appear that such failure had any causal connection with the injury inflicted, is not a ground of negligence authorizing a recovery against the driver or his master, and the mere employment of one to drive knowing that he does not have a driver's license, does not constitute actionable negligence. Aycock v. Peaslee-Gaulbert &c. Co., 60 Ga. App. 897 (5 S. E. 2d 598).
The evidence did not authorize the verdict for the plaintiff and the trial court erred in overruling the general grounds of the motion for new trial.
2. The only special ground of the motion for new trial complains of a portion of the charge of the court. Under the circumstances of this case, this complaint is not likely to recur on another trial, and for that reason this ground of the motion is not considered.