57 Ga. App. 604 | Ga. Ct. App. | 1938
Mrs. Hattie B. Causey sued Swift & Company, a corporation, to recover damages for personal injuries alleged to have been received by her on or about May 22, 1936, as a result of a collision in the City of Macon, Georgia, at the intersection of Montpelier and Coleman Avenues, between an automobile in which she was traveling and an automobile truck belonging to the defendant which, at the time, was being negligently operated by the defendant by and through its servant, the driver of the truck, E. P. Meadows. The defendant in its plea denied liability. On the trial of the case the court directed a verdict for the defendant. The plaintiff moved for a new trial on the general grounds, and on the sole special ground that the court erred in directing a verdict. To the judgment overruling the motion for new trial the plaintiff excepted. The sole question presented for determination is whether, under the undisputed and uncontradicted testimony, the inference was demanded that at the time of the collision the de
Mr. Smith testified, with reference to this, as follows: “I had a conversation with Mr. Meadows and gave him instructions about the use of the truck. Mr. Meadows said something to me about getting supper. I told him the employees were not allowed to use the truck except for business. Mr. Meadows asked me how he was to get his supper, and I told him it would be perfectly all right to stay uptown and get supper but not to go home. His job was to take the mail every afternoon and drive from the post office to the laundry. It all could have been done on the same delivery; naturally he went to take the mail and get the laundry on the same trip. After he got the laundry he was to come back and get out all the orders. On that particular afternoon he was supposed to come back and help me get out all the orders in the ship
It appears from the uncontradicted and undisputed evidence that Meadows left the defendant’s plant with the defendant’s truck on a mission for the defendant; that he went by the post office, and from there went by the laundry and got some laundry work which he placed in the truck; and that in all this he was acting as a servant of the defendant in the prosecution of the defendant’s business and in the scope of his authority as such servant. It appears further from the undisputed and uncontradicted evidence that after Meadows went by the laundry he started in the truck for his home, which was off the return route, for the purpose of going home to get his supper; that in so doing he was going in an entirely opposite direction from the direction of the defendant’s plant, and that Meadows, while driving the truck towards his home, and when he reached the intersection of Montpelier and Coleman Avenues, the truck he was driving collided with an automobile in which the plaintiff was riding, and as a result of this collision the plaintiff received physical injuries.
Meadows testified: “At that time I lived at 402 Winship Street; that is west from where the accident happened. That is further out on the Columbus road from there — Montpelier Avenue instead of Columbus road. I didn’t have permission from any one at Swift & Company’s plant to go to my house and get my supper. Swift & Company’s plant is located on Fifth and Plum Streets, and the Independent Laundry is on Second Street. In going from the Independent Laundry to Swift & Company you would go down Poplar to Broadway, up Broadway to Plum, and down Plum until you get to the corner of Fifth and Plum, and that is where Swift’s creamery is. I was going in an entirely opposite direction from that. Mr. Bein is one of my bosses; he is the superintendent of the ice-cream department. I had instructions from him about meals; he gave me the same ones Mr. Smith gave me. . . After I had gotten the laundry on the night of May 22nd, I was supposed to come back to the plant and start getting up another shipment. After I got the laundry I headed for home to get some
It is true that it has been held that where a servant steps aside from his master’s business, for however short a time, to do an act entirely disconnected from it, the servant is not in the prosecution of the master’s business, and if injury results from the act of the servant the master .is not liable. Fielder v. Davison, 139 Ga. 509 (77 S. E. 618); Savannah Electric Co. v. Hodges, 6 Ga. App. 470 (65 S. E. 322); Dawson Chevrolet Co. v. Ford, 47 Ga. App. 312 (170 S. E. 306). In such eases the servant is in the performance of an act entirely disconnected with the master’s business, and one which is not authorized by the master to be performed by the servant in the conduct of the master’s business. In the case at bar it appears clearly and unequivocally from the undisputed evidence that the servant, Meadows, who was operating the defendant’s truck, was authorized by the master, while on the trip
A slight territorial detour by Meadows from the authorized area for the operation of the truck, for the purpose of performing one of the duties which he was authorized by the master to perform on the trip, namely, getting his supper, would not necessarily constitute a deviation from the master’s business. The rule is well stated in the American Law Institute’s Eestatement of the Law of Agency, § 234 as follows: “One may be a servant, although a bad servant, in performing his master’s business at a forbidden place if the place is within the general territory in which the servant is employed. One engaged to drive an automobile in New York City would not be in the service while driving in Albany; but a servant directed to drive from New York to Albany on the west side of the Hudson would not cease to be acting within the scope of the employment while driving on the east side. In all 'cases, it is a question of degree whether or not the difference in place is so great as to make the act done substantially different from
There is absolutely no evidence in this record which shows with any degree of certainty how far Meadows had made a territorial detour from the territorial area of the truck’s operation. It may have been a block, or it may have been two blocks. The evidence tending most strongly to show that Meadows had deviated territorially from his authorized route is in his testimony. He stated that he was ‘“going in an entirely opposite direction” from the route back to the defendant’s plant. It appears from the evidence that the accident happened at the intersection of Montpelier and Coleman Avenues, and near Tatnall Square. There is nothing in the evidence to indicate the location of these places. While it appears from the evidence that Meadows was going to his home at 402 Win ship Street, the location of 402 Winship Street nowhere appears from the evidence. So far as it appears from the evidence, the intersection of the streets where the accident occurred, or Tatnall Square, or Meadows’s home to which he was proceeding, may have been in close proximity to the route by which he was required by the defendant to return with the truck to the plant. It was held in Perry v. Lott, 38 Ga. App. 729 (145 S. E. 479), that where there was no evidence as to what route was pursued by the driver, whether there was a slight or a gross deviation from the direct route which it was his duty to travel, it could not be said as a matter of law that the driver had made such a deviation as took him without the scope of his employment. The court can not take judicial notice of the locality of streets or squares in a city, or the distance between various streets in a city. These are not “matters of public knowledge” which can be “judicially recognized without the introduction of proof.” Code, § 38-112; North
The evidence did not, as a matter of law, demand a verdict for the defendant. The court erred in directing a verdict for the defendant, and in overruling the plaintiffs motion for new trial.
Judgment reversed.