53 Ga. App. 753 | Ga. Ct. App. | 1936
Helen Ormond through her next friend, L. L. Ormond, instituted suit against Manuel Eosenthal, Samuel Finn, and Manuel Abelman for personal injuries. The substance of the petition was that Samuel Finn and Manuel Abelman were operating, as partners, a dry-cleaning business in which they employed Manuel Eosenthal to operate a delivery truck in soliciting and delivering dry-cleaning; that on a certain day, while in the prosecution of their business and while acting within the scope of his employment, Manuel Eosenthal drove said truck against the plaintiff, causing her named injuries, and that he was negligent in various specified ways in the operation of the truck at the time of the injury. L. L. Ormond, as father of Helen Ormond, also brought suit against the defendants for sums expended by him for her treatment, and for loss of her services. The two cases were by consent tried together. Manuel Eosenthal filed a separate answer from that of the other two defendants, both denying the material allegations of the petition. The trial resulted in a- ver
The judge charged the jury, on the subject of damages to be awarded to the plaintiff, in part as follows: “You would give to the plaintiff, if she recovers, just such sum as you think would be fair compensation for the pain and suffering she has endured and will endure, and for any impairment, if any, to her bodily or mental health and vigor, and for any disfigurement or injury received on this occasion, provided you believe there was such and you believe she is entitled to recover.” The assignment of error on this charge is that “ there was no evidence to show that the plaintiff was in fact permanently disfigured or deformed.” The charge, as set out above, did not refer to any permanent disfigurement or deformity, but only instructed the jury that they might compensate the plaintiff in damages for disfigurement or injury, if any, if they thought her otherwise entitled to recover. With reference to disfigurement, Helen Ormond testified: “That is the injury right where it is cut to my ankle bone; that is the scar from that accident; and I was hurt on my head back here, right there” (indicating). Her mother testified: “She has a large scar on her ankle, and a scar below her knee, and a scar above her knee, and a little scar on her elbow. The scar was about that long above her knee [indicating], about three inches I would say, on the outside of her leg.” This evidence clearly shows that the plaintiff sustained injuries which left scars on her body. Furthermore, it is plain that during the course of the examination of the plaintiff the court and jury saw the scars on the child; and for that reason alone we could not hold that there was not such an evident appearance of “disfigurement” as to justify the court’s use of the word, “ which, to say the most of it, is obviously merely casual.” Western & Atlantic R. Co. v. Sellers, 15 Ga. App. 369 (3) (83 S. E. 445). Our courts have upheld the right of one injured to recover for mental pain and suffering consequent on disfigurement. See Western & Atlantic R. Co. v. Sellers, supra; Georgia Southern & Fla. Ry. Co. v. Wright, 130 Ga. 696 (61 S. E. 718); Betts Co. v. Hancock, 139 Ga. 198 (77 S. E. 77). As we have pointed out, there was evidence that the plaintiff was disfigured; and the assignment of error, being based on the assertion that there was no such evidence, we think it is without merit.
The fourth assignment of error is as follows: “Because the court erred . . in failing and omitting to charge and state to the jury fully and completely the contention of the defendant. Movant contends that the court failed to place before the jury the defendant’s contentions that the plaintiff’s injuries, if she was so injured, resulted from being struck by a car belonging to another individual, and that plaintiff was not hit by the truck which was owned by the defendant.” In the petition it was alleged that Rosenthal was employed by Abelman and Finn, to operate a certain delivery-truck for their dry-cleaning business, and that on a named date, “Rosenthal did run into and knock your petitioner’s daughter down with said truck he was driving.” In their answer Finn and Abelman denied this allegation. The answer of Rosenthal set out that “for further answer this defendant says that if petitioner was injured, such injuries were occasioned by another who is unknown to this defendant, and that this defendant did not at any time injure, strike, or run into petitioner as alleged in her petition.” The court in the charge specifically told the jury that the defendants Finn and Abelman denied that paragraph alleging that “Rosenthal did run into and knock . . petitioner’s daughter down,” and read to them verbatim the above-quoted part of the answer of Rosenthal. Further in the charge, the court said: “Before you would be authorized to find that the defendants Samuel Finn and Manuel Abelman, doing business as Colonial Dry Cleaners, as alleged in the petition, are responsible in this case in any view that you may take of it, you must first believe that Manuel Rosenthal, at the time the plaintiff was struck, if you believe that she was stmclc by the trucle which was being operated by Manuel Rosenthal, which is denied, that he, Manuel Rosenthal was employed by Samuel Finn and Manuel Abelman, as alleged
There is an assignment of error on a particular charge in
This headnote does not need elaboration.
On the trial the plaintiff offered competent evidence that Rosenthal struck the plaintiff while driving a truck belonging to Finn and Abelman, and that at that time Rosenthal was employed by those defendants. On this showing 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 at the time of the injury was not engaged in the business of the master. Gallagher v. Gunn, 16 Ga. App. 600 (85 S. E. 930), Dawson Motor Co. v. Petty, 53 Ga. App. 746 (186 S. E.), and cit. The testimony of Manuel Abelman, one of the
This evidence, the plaintiff in error urges, sufficiently overcame the presumption that he was acting within the scope of his employment and in the prosecution of his master’s business, so as to demand a verdict for. the defendants Finn and Abelman. However, after careful consideration, we are unable to take such a favorable view of this evidence. We fully recognize that the presumption involved is a rebuttable one. The basis for the presumption is that it is in general an easy matter to prove the ownership of a car that inflicts an injury, but that whether the car was at the time of the injury being operated in the prosecution of the defendant’s business is a matter peculiarly within the knowledge of the defendant, and one on which it is at times exceedingly difficult for the plaintiff to obtain proof. Therefore, if this presumption is to serve its purpose, 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. Thus, testimony of a defendant which tends to show that the driver of the truck was not in the prosecution of the master’s business or within the scope of his employment, but is not altogether inconsistent with or antagonistic to the prima facie case made, and does not within itself affirmatively establish facts to show that the servant was not in the prosecution of his master’s business or acting within the scope of his employment, is not sufficient, as a matter of law to overcome the presumption.
Let us take the case at hand. The plaintiff’s evidence clearly disclosed that Eosenthal was a general employee of Finn and Abelman in the operation of a truck in their dry-cleaning business, and that it was his duty to solicit and deliver clothes. The defendants in their testimony admitted as much. The testimony
Judgment affirmed.