46 Ga. App. 425 | Ga. Ct. App. | 1933
George Jackson sued Atlanta Goodwill Industries Inc., to recover for personal injuries and damage to his automobile, alleged to be the result of the negligence of defendant’s servant, John Davis, in driving defendant’s automobile-truck into plaintiff’s automobile. After the plaintiff had introduced evidence and closed his ease, and before the defendant had introduced any evidence, the court rendered the following judgment: “At the conclusion of the evidence, upon motion of the defendant, the case is dismissed, there being no right of action under the pleading and the evidence in the case.” On March 28, 1932, and during the term of court at which said judgment was rendered, the plaintiff filed its motion to vacate the judgment and reinstate the case, the material part of the motion being as follows: “Plaintiff insists the granting of said nonsuit was error, for the following reasons: The said judgment . . contravenes and is in conflict with the fourteenth amendment to the United States constitution, sec. 1, which provides as follows: 'nor shall any State deprive any person of life, liberty, or property without due process of law;’ and sec. 1, which provides as follows: 'nor deny to any person within its jurisdiction the equal protection of its laws.’ And now, at the term of court at which said nonsuit was granted, comes plaintiff and moves the court to set aside and vacate the nonsuit, and reinstate the case.” The trial judge overruled the motion to reinstate, basing his judgment upon the theory that the defendant was not liable, because it was a charitable institution. Exception was taken to this judgment.
We are first confronted with the question whether or not the writ of error should be dismissed upon a motion the substance of which is as follows: (1) Plaintiff in error failed to except to the judgment dismissing the case. (2) The motion to reinstate was based solely upon a constitutional question which was not raised until after the case had terminated. (3) Said constitutional question
We come now to the controlling question in the case — the correctness of the judgment overruling the motion to reinstate the action. The judgment contains the following language: “Though the defendant admits in its answer the allegations of paragraph 5 of plaintiff’s petition, that defendant operates for gain or profit, in that fit maintains a store for the sale of merchandise,’ that seems to be a conclusion disproved by the evidence. . . Under 37 App., Berry School case, it seems my judgment is right.” Paragraph 5, referred to in the court’s judgment, is as follows: “That the defendant is a charitable institution, but operates for gain or profit, in that it maintains a store for the sale of merchandise.” In the defendant’s answer he “admits paragraphs 5 and 6.” We do not construe the defendant’s answer as admitting that it is such a charitable institution aS can be sued for a tort, and we agree with' the trial court that the question at issue must be determined by an inspection of the evidence in the record in connection with the law applicable thereto. The only evidence bearing upon the question we are considering is that of the witness W. G-. Glisson, sworn for the plaintiff. His testimony is as follows: “I am superintendent of the Atlanta Goodwill Industries. The Atlanta Goodwill Indus
This is a case where a third party who was not a beneficiary of the defendant institution was injured by the tort of an agent and servant of said institution. As we view the evidence, it is also a case where the defendant was primarily and solely a charitable institution. See Butler v. Berry School, 27 Ga. App. 560 (109 S. E. 544). Indeed, the statement of facts set out in the Berry School case leads us to the conclusion that Atlanta Goodwill Industries Inc. is more essentially a charity than is that school. For instance, in the case cited this language is used: “The fact that all the pupils are re
In the instant ease the defendant corporation was primarily and essentially a charitable institution. The petition does not allege, and the evidence does not show, that it failed to exercise ordinary care in selecting its truck-driver, or in retaining him in its service. He appears to have been engaged in work directly connected with and necessary to the charity. The case does not, of course, come within the exception to the general rule first stated above in the Savannah Hospital ease. Therefore we hold that the judgment denying the motion to reinstate the case was proper.
Judgment affirmed.