McIntire v. Hartfelder-Garbutt Co., 2900

2900 | Ga. Ct. App. | Jun 7, 1911

Powell, J.

The plaintiff was injured by the negligent operation of an automobile driven at the time by a Mr. Starr. The only proof of any connection between the defendant and the machine, or between the defendant and Starr, was contained in a letter written by the defendant to the plaintiff’s attorney, which was introduced in evidence. So far as material it is as follows: “Replying to your favor of the 19th in reference to Mr. Chas. A. Mclntire being struck by oxir machine being operated by Mr: Starr, beg to say that we provide a machine for our city salesman for business use only. Mr. Starr occupies this position with us. The day he was unfortunate enough to strike Mr. Mclntire with the machine, Mr. Starr took this machine xvithout our permission, to go to dinner. He was instructed to leave the machine at Bryson’s, or Conrad’s, I am not exactly sure which. He was going to dinner, and consequently we had no control over him, and while using our machine was doing so without our permission.” The court granted a non-suit, and plaintiff excepts.

Counsel for the plaintiff construe this letter as meaning that Starr had been directed by the defendant to take the machine to Bryson’s or Conrad’s garage, and was on his way there, as well as on his way to dinner, when the injury occurred. We do not so construe the language. It seems tó us to mean, when taken in connection with its entire context, that, notwithstanding Mr. Starr had been directed not to take the machine for the purpose of going to dinner, but had been instructed to leave it at the garage, he did the former. With the letter thus construed, it puts the case within the rule announced by this court in the case of Lewis v. Amorous, 3 Ga. App. 50 (59 S.E. 338" court="Ga. Ct. App." date_filed="1907-11-25" href="https://app.midpage.ai/document/lewis-v-amorous-5602706?utm_source=webapp" opinion_id="5602706">59 S. E. 338). This case arose prior to the passage of the automobile act of 1910 (Georgia Laws 1910, p. 90), and we have not examined that act to see whether there is anything therein which changes the common-law rule previously in force in this State as to this question. Judgment affirmed.