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Damages. Before Judge Shaw. Fulton Superior Court. October 9, 1953.
In a suit for injuries caused by the negligence of the defendant's employee in driving a vehicle on which the plaintiff was riding, the evidence authorized the jury to find that the invitation to the plaintiff to ride upon the vehicle was given in the prosecution and within the scope of the defendant's business, and that the plaintiff could not have avoided his injuries by the exercise of ordinary care after the negligence of the defendant's servant became apparent to him. The verdict for the plaintiff was supported by the evidence, and the court did not err in denying the motion for new trial.
F. C. Patterson sued Crane Auto Parts, Stewart Avenue Branch, Inc., and alleged: The defendant owned and operated an automobile junk yard where it sold automobile parts. The plaintiff went with a mechanic to the defendant's place of business to buy a switch. They told the defendant's agent in charge, Malone, what they wanted to buy, and he directed another employee, Rowland, to go out in the lot to look for a switch that would fit the plaintiff's automobile. Malone told the plaintiff and his mechanic to go with Rowland to look for the switch. The defendant furnished an old truck for this purpose. The truck had a seat for the driver only, so the plaintiff and his mechanic stood on the truck as directed by Rowland. Rowland drove the truck 500 yards to an automobile having a switch, but the plaintiff's mechanic rejected it. Rowland had been operating the truck in a reasonable and safe manner, but after the plaintiff's mechanic refused the switch, and when they went to find another switch, Rowland speeded up the truck and began to cut corners in a reckless manner. The plaintiff and his mechanic told Rowland to stop, but he continued to drive negligently and at an excessive speed, cutting toward a junked automobile. The mechanic in front of the plaintiff jumped toward the seat occupied by Rowland, but the plaintiff could not get into the truck and was knocked off, injuring his leg.
The defendant answered, admitting only that the plaintiff and another person had come to its place of business to buy an automobile switch and had so informed the defendant's agent in charge.
The plaintiff testified in part: "We drove out there, and this man in charge said it would be a little bit before he could get it; that the colored man was busy; that he had the colored man to get a part for another party. This man in charge told the colored man what we wanted, and he left, and he was gone for awhile to get it, and he came back asking questions, and he seemed confused about exactly what was wanted, and the man in charge turned to us and said to go with him, and be sure we got what we wanted; and we went out to the car to go with him, and when we got out there, we didn't know how we could get over there, and the colored man got on a truck that looked like it had been a panel truck with a body cut off, with one seat in it, and a battery, and an oxygen tank and acetylene welding outfit, and lots of junk and there was no place for us to ride, and he said to swing on; and we swung on the side and went down to the first place about four or five hundred yards, and he started to take a switch off, and it was, according to the mechanic, not as good a switch as the one we had, and he said he didn't want that one, and he asked him if he had another one, and he said he thought there was one farther up the lot; after that, we turned down the first switch, and we swung the truck and started to look for the switch he wanted; and he went around a curve, and like to have sideswiped a car, and there was room for two cars around there, and the mechanic and myself hollered and asked him to cut down on the speed, that he was going too fast, and I couldn't get off unless I jumped off into a pile of junk automobiles; and he didn't pay us any attention and he drove on in the yard; but we didn't know where he was going, and he drove straightway close to the side of the trail for forty or fifty feet and hit this other curve, and when he went around this curve, the junk hit the truck, along about where the door started, and that drove the door of the truck, it drug back, and there was no possible way for me to get out of the way, and there was no way that I could get in the truck, and it knocked me, and it cut me up, and I don't remember anything until I was in the car, going to Grady Hospital; that is all I remember now."
On cross-examination, the plaintiff further testified: "I was going after a switch for a 1941 Pontiac. . . I don't know how long the running board was that I was on. The ruling board on the side of this car was about six inches wide and I imagine about four or four and a half feet long. You say I was standing on the right side of this vehicle holding onto the body. I was holding onto where it had been cut off. Being as big as I am, and this fender sticking out no more than it was, I would say that my body was protruding two or three inches beyond the running board. The mechanic that went with me got up in the place where the seat should have been. . . I didn't know how he got in there or what he was on; I was looking out for myself at that time. As to the occasion for my going down into this lot, well, no more than the man in charge told us to go. I mean that I was depending on this mechanic to get the part I wanted. I really knew what we were looking for. There was occasion for me to go down there; I was told to go down there by the man in charge at Crane's. I do not mean the man in charge told me to go out and get on the truck and hang on the side of it; he didn't say that; he said to go with the colored man; the colored man said to hang on. . . I don't know what this place was. It was not a paved road. The ground and terrain was about as rough and rugged as I could have found anywhere."
Witnesses for the defendant testified that Rowland had been sent after the part, but had not been instructed either to walk or to take the truck; that it was not customary for people buying parts to go on the lot; that it was a rule of the company not to let anyone ride on the equipment on the lot; that the agent in the office had not told the plaintiff or the man with him to get on the truck or to go on the lot; and that the man on the lot did not ask them to get in the truck, did not need them to go with him, and was not supposed to take anyone with him.
The jury returned a verdict for the plaintiff, and the defendant's motion for new trial on the general grounds was denied, to which judgment the defendant excepts.
The defendant contends that the evidence demanded a finding that its employee, Rowland, was acting beyond the scope of his authority in permitting the plaintiff to ride on its truck, and also showed that the plaintiff's injuries were caused by his own failure to exercise ordinary care.
The evidence supported the case as laid in the petition. The issue was not whether Rowland and Malone were expressly authorized to send the plaintiff onto the lot for the purpose of choosing an acceptable part and to permit him to ride in the defendant's vehicle, but was whether their actions were in the scope of their employment and in the prosecution of the defendant's business, so as to be impliedly authorized. Code 105-108. As stated in Evans v. Caldwell, 52 Ga. App. 475 (2) (184 S. E. 440), affirmed in 184 Ga. 203 (190 S. E. 582): " 'A master is responsible for the tortious acts of his servant, done in his business and within the scope of his employment, although he does not authorize or know of the particular act, or even if he disapproves or forbids.' This is so because the test of the master's responsibility for the acts of his servant is not whether such act was done in accordance with the instruction of the master to the servant, but whether it was done in the prosecution and in the scope of the master's business." Also see Planters Cotton-Oil Co. v. Baker, 181 Ga. 161 (181 S. E. 671).
The defendant's business was the sale of used automobile parts, and the plaintiff came to the defendant's lot to buy such a part. The evidence authorized the jury to find that the defendant's agent in charge of its place of business told the plaintiff and his mechanic to go with Rowland to be sure they got the part they wanted, and that Rowland told them to get on the truck with him to go to the junked automobiles to find the part sought. The jury was authorized to conclude that the invitation to go on the lot as well as to ride in the truck was given in the prosecution and within the scope of the defendant's business.
Waller v. Southern Ice & Coal Co., 144 Ga. 695 (87 S. E. 888), and Carpenter v. Lyons, 78 Ga. App. 214 (50 S. E. 2d 850), which are cited by the defendant, are both cases in which the employee's invitation to a third person to ride in the employer's vehicle had no connection with the employer's business, and they are not in point.
The evidence did not show conclusively that the plaintiff could have avoided his injuries by the exercise of ordinary care. Rowland's negligence was not apparent to the plaintiff until after the plaintiff and his mechanic had refused to accept the part found at the first stop. The truck was then moving rapidly; the plaintiff and his mechanic requested the driver to slow down, and the mechanic got inside the truck, but the plaintiff was unable to do so, as it was filled with junk and a welding outfit.
The facts that the defendant's truck had a driver's seat only and was full of equipment, that the plaintiff stood on the running board of the truck while riding over the defendant's 25-acre lot, and that only one other vehicle might have also been moving on the lot at the time, do not demand a finding that the plaintiff's negligence was the sole cause of his injuries or that the plaintiff was negligent.
The evidence authorized the verdict, and the court did not err in refusing a new trial.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.
Northcutt & Edwards, contra.
Ferdinand Buckley, Marshall, Greene, Baird & Neely, for plaintiff in error.
Saturday May 23 03:29 EDT

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