56 Ga. App. 338 | Ga. Ct. App. | 1937
Lead Opinion
Mrs. Mary M. Wright instituted suit against W. G. Crisp, to recover damages to the plain tiff’s automobile allegedly resulting from the negligence of the defendant in the operation of the automobile by his authorized agent, or in the operation of the automobile by one who at the time was drunk, to whom the defendant had entrusted the automobile with knowledge of this person’s drunken condition.
It appeared from the evidence that the plaintiff had left her automobile parked on a public street between 12 and 1 o’clock at night, without any lights thereon, in violation of the law, and that the defendant’s automobile, which was not driven by the de
A verdict for the plaintiff was rendered. The defendant excepted to the overruling of his motion for new trial.
The plaintiff can not recover unless at the time of the collision Tyson was operating the defendant’s automobile either with the defendant’s consent or permission, or was at that time the defendant’s agent or servant and engaged about the defendant’s business. It is undisputed in the evidence that Tyson was not regularly employed by the defendant as his servant to operate the automobile. While it may appear from undisputed evidence that the driver, when operating the automobile at the time of the accident, was not the agent or servant of the defendant, it does appear that the defendant delivered the keys of the automobile to the driver and engaged-the driver to operate the automobile, and permitted him to do so after the defendant had given him intoxicating liquors, and that the defendant expressed the intention of taking the other person to his home; and it does not appear that the defendant at any time withdrew permission from the driver to operate the automobile, or that the defendant took back the keys. The inference is authorized that the defendant permitted the driver, while knowing him to be under the influence of intoxicants and therefore not competent to operate an automobile carefully along a public street, to operate the automobile on the street and to take the other person home, and that at the time of the accident the driver was operating the automobile with the defendant’s per
Judgment affirmed.
Dissenting Opinion
The foregoing ruling represents the conclusion of my colleagues who constitute the majority of the court. From it I dissent. Speaking for myself alone: It is undisputed in the evidence that Tyson was not regularly employed by the defendant as his servant to operate the automobile. So far as it can be inferred from the evidence, Tyson was engaged by Crisp for no purpose whatsoever (construing the evidence most strongly for the purpose of sustaining the plaintiff’s case) than to operate the automobile and to take Crisp home or wherever Crisp was going; and that Tyson was so engaged by Crisp at the suggestion of a policeman, because Crisp was drunk and it was not advisable for Crisp himself to operate the automobile. While it is true that Crisp remarked to Howard that Crisp would take Howard home, this remark to Howard, although it was made in the presence of Tyson, certainly could not be construed as any authority to Tyson, without further orders or consent from Crisp, to take the automobile without Crisp’s knowledge, and, leaving Crisp behind, proceed to take Howard home. In so far as Tyson had any authority to operate the automobile, that authority was to take Crisp home or where Crisp was going. After they arrived at 87 Harris Street, Tyson had no authority respecting the operation of the automobile, if he had any, except to take Crisp from 87 Harris Street to any other place where Crisp might desire to go. Tyson’s authority to operate the automobile had terminated, and he had no authority to operate it any further, unless Crisp had reauthorized him to do so. It does not appear that Crisp did this. The fact that Crisp had not redeemed the keys from Tyson is insuffi