56 Ga. App. 428 | Ga. Ct. App. | 1937
Mrs. Daisy Willeox McClain, now Mrs. Newlin, filed suit against Mrs. P. E. Chandler and Atlantic Ice and Coal Corporation, to recover damages for injuries sustained while riding in an automobile of the corporation, which was being driven by Mrs. Chandler, it being alleged that at the time she was acting in the scope of her employment as manager of the Dawson, Georgia, office of the corporation, and that the automobile was being driven under instructions of the corporation’s division manager, who sent Mrs. Chandler to transact certain business for the .corporation, which the plaintiff also sought to hold liable under the doctrine of respondeat superior. The defendants denied that Mrs. Chandler was guilty of any negligence, especially gross negligence, and further denied that the corporation was liable for any negligence of Mrs. Chandler, who was by them alleged to have been on a personal mission. By amendment Mrs. Chandler admitted that the trip was made on business for the corporation, and that she acted under the instructions of the division manager, P. E. Chandler, her husband, who requested the plaintiff to accompany her. The jury returned a verdict against both defendants. The defendants filed a motion for new trial on the general grounds, and by amendmeixt added several special grounds which will be referred to in this opinion. The exception is to the overruling of the motion.
From a careful examination of the entire evidence we are of the opinion that the jury was authorized to return a verdict in favor of the plaintiff against both defendants. It appeared without contradiction that Mrs. P. E. Chandler, with whom the plaintiff was riding as a gratuitous guest on the occasion of her injuries, was at the time on business for the corporation under instructions of her superior, its divisional manager, the object of the trip being to check certain inventories and to sell some hams for the corporation. It further appeared that the .division manager had authority to so instruct Mrs. Chandler, and also to invite third persons to accompany Mrs. Chandler on such occasions. “One riding by invitation and gratuitously in another’s
If, in the present case, Mrs. Chandler, the driver of the automobile on business for the corporation, her employer, was grossly negligent, and the plaintiff was injured thereby and was unable to avoid the consequences of such negligence, she would be entitled to recover not only against Mrs. Chandler but against the corporation as well. On the question of gross negligence the evidence shows that at the time of the collision between the car driven by her and that driven by an army officer, at which time the plaintiff sustained injuries, the only eye-witnesses besides the plaintiff and Mrs. Chandler were three occupants of a car which was following the officer’s car at a distance of about two hundred and fifty feet. They testified that after rounding a curve they observed the approach of Mrs. Chandler’s car as it came over a hill; that when first seen she was driving her car on hex right-hand side of the road, but that she turned to the left so that part of her car was over the middle of the roach At what point she began to turn her automobile the evidence varies, one or two testifjdng that it was about one thousand to fifteen hundred yards before the collision, and another testifying that it was about one hundred to three hundred yards distant. All testified that the officer’s car was well on his side of the road at all times, and that after the impact Mrs. Chandler’s car was partly on that side at
The plaintiff testified that shortly before the collision she observed four headlights of approaching cars but was unable to state whether or not Mrs. Chandler’s car left the right-hand side of the
In this case, where several witnesses testified that a part of Mrs. Chandler’s car entered the wrong side of the road at a distance of from one hundred yards to fifteen yards from the point of the collision and continued along such path, and where the officer testified that “I dimmed my headlights, pulled over farther to the right, and when the approaching car was very near to mine it cut across the road to the left suddenly, striking the left front of my car,” the jury was authorized to find that the act of Mrs. 'Chandler amounted to gross negligence. It is argued by the plaintiffs in error that the officer’s characterization of “very near” did not fix a point at which the turning of Mrs. Chandler’s car would constitute gross negligence. That term by itself is admittedly indefinite, and its import is to be determined by all of the existing
One ground of the motion for new trial complains that the court erred in permitting the officer to'testify, over objection, that “when the approaching car was very near to mine it cut across the road to the left suddenly,” it being contended that the expression “very near” constituted only an opinion and conclusion of the witness. Assuming that such words are vague and indefinite and amount to only a conclusion, the objection was not limited thereto but went to the full statement, which also included testimony clearly admissible, namely, that the car cut across the road to the left suddenly. In such a case it was not error for the court to refuse to exclude the entire statement. L. & N. R. Co. v. McHan, 144 Ga. 683 (2) (87 S. E. 889); Edenfield v. Brinson, 149 Ga. 377 (5); Central Railway Co. v. Butler Marble Co., 8 Ga. App. 1 (8), 9 (68 S. E. 775); Grier v. State, 43 Ga. App. 348, 349 (2) (158 S. E. 634). Furthermore, as shown in the first division of this opinion, the words “very near,” when taken in connection with the rest of the sentence, sufficiently
Another ground complained that the court erred in charging the jury that “the' plaintiff has filed her suit in this court against the defendants, the same being a suit for damages, and in her petition she sets up and contends that she has been damaged or injured in the sum of twenty-five thousand dollars. She contends that she was riding in the automobile of Mrs. P. E. Chandler at the instance of P. E. Chandler, who was the general agent and employee, and also that Mrs. P. E. Chandler was an employee of the defendant, Atlantic Ice and Coal Company; that she was an invited guest in that car, and Mrs. P. E. Chandler was operating that car and on a trip, on a mission of her business, and while riding in that car they had a collision with another car, and the defendant negligently ran into another automobile, which caused her serious injury;” it being contended that it was argumentative, confusing, and misleading to the jury for the following reasons : It is urged that by referring to P. E. Chandler as “general agent” the effect was to enlarge his powers. Whether he was a general agent or divisional manager, the petition alleged that he had the authority to send, and did send, Mrs. Chandler on the particular trip on business for the corporation. Under the circumstances the court’s reference to Chandler as a “general agent” did not harm the defendants. Furthermore, the proof showed that he did have such authority and exercised it in the particular instance. It is also urged that the statement that the plaintiff “was riding in the automobile of Mrs. Chandler” tended to confuse the jury. The court also stated that the plaintiff contended that Mrs. Chandler was an employee of the corporation, and in another portion of the, charge informed the jury that they would have out with them the pleadings to which they could refer for the actual contentions and issues in the case, and in still another portion of the charge made it clear that the car, though driven by Mrs. Chandler as an employee, was the property of the corporation, it being stated that “if you should find from the evidence that the plaintiff was riding by invitation and gratuitously in the automobile of the defendant,” etc. (Italics ours.) Furthermore, the court charged that the corporation would not be liable unless Mrs. Ghandler was acting in the course and scope of her employ
Another ground complains that the court, after charging the jury that they could return a verdict against both defendants, provided the plaintiff carried the burden of proof, withdrew such charge from the jury, but in attempting to correct the charge did not in express terms inform the jury that the plaintiff could recover against Mrs. Chandler and not against the corporation. The court, in its recharge, stated that the jury would not be authorized to find against the corporation without also finding against Mrs. Chandler, charged the law as to the liability of the master for the acts of its servants in the course of and scope of their employment, and then gave the jury different forms of verdicts, one of them being a form to be used in case they found against Mrs. Chandler alone. We fail to see wherein either of the defendants was harmed. From what has been said it follows that the court did not err in overruling the motion for new trial.
Judgment affirmed.