18 S.E.2d 559 | Ga. Ct. App. | 1942
Lead Opinion
1. The court did not err in overruling the general grounds of the defendant's motion for new trial.
2, 3. The special grounds of the motion are without merit.
1. The evidence was sufficient to authorize the jury to find that the injuries of the plaintiff were proximately caused by the negligence of the driver of the truck, but it is contended in support of the general grounds of the motion for new trial that under the evidence the driver was not, at the time of the plaintiff's injury, acting within the scope of his employment with the defendant, but was on his own personal business, disconnected from any interest of the employer, and that the verdict and judgment were not authorized. It appeared from the evidence that Jewell Davis, the truck driver, was at the time of the injury in the employ of the defendant, who conducted a business on Ivy Street, between Auburn Avenue and Edgewood Avenue, in the City of Atlanta, in the name of Dixie Radiator Welding Company, and that on the morning of the injury the driver of the truck had been directed to go to Bellwood prison camp of Fulton County for the purpose of bringing back a radiator to be repaired by the defendant; that the prison camp is near Ashby Street between Bankhead Highway and Marietta Road; that the usual route of the driver in going from the defendant's place of business to the prison camp was to proceed on Luckie Street to North Avenue which crosses it, to turn to the left on North Avenue, and then on Marietta Street and to the prison camp. On the morning of the injury, however, he did not turn to the left after reaching North Avenue, but proceeded across it and along Hemphill Avenue, which is a continuation of Luckie Street, and after reaching Third Street, about two blocks beyond North Avenue, ran the automobile into the plaintiff who was at the time crossing Hemphill Avenue, with the result that the plaintiff was severely injured. The driver testified that he was en route to the prison camp for the radiator, but that he crossed North Avenue and was proceeding along Hemphill Avenue because he wanted to go to his home on Tenth Street for a suit of clothes which he desired to have pressed, and that he expected to return to Fifth Street and along that street *569 to proceed to Marietta Street and thence to the prison camp. Because of the alleged deviation in the manner stated there arises the issue whether or not the driver was within the scope of his employment at the time of the injury to the plaintiff.
It is, of course, the general rule that "if a servant steps aside from his master's business, for however short a time, to do an act entirely disconnected with it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not." Atlanta Coca-Cola Bottling Co.
v. Brown,
2. One special ground of the motion for new trial complains that the court erred in admitting in evidence, over objection and without proof of its correctness, a map of the City of Atlanta, it being contended that it was a small map and was prejudicial and harmful to the defendant because it tended to show that there might possibly have been a route other than by North Avenue to the prison camp, the destination of the truck driver, and to minimize the deviation of the driver and give the jury the impression that it was so slight as to be of no consequence. It is, of course, error to admit in evidence a map which is not authenticated or proved correct, but in the present instance we do not think that the admission in evidence of the map in question was harmful to the defendant. It was established without contradiction that there was a route beyond North Avenue to Marietta Street and the destination of the driver, and it is not contended that the map showed to the contrary. The evidence also conclusively established that the difference between the two routes did not exceed 15/100 of a mile (792 feet) and the map did not show less, and, indeed, did not show any measurements or any marks which could reasonably have misled the jury into minimizing the uncontraverted facts as to deviation. This special ground does not show reversible error.
3. The charge of the court, "If a servant so employed, while engaged in the business of the master, makes a slight deviation on business of his own, the master remains liable when the act was so closely connected with the master's affairs, though the servant might derive more benefit from it, it nevertheless might be regarded as in the scope of his employment," stated a correct principle of law and was adjusted to the facts of the case, and was not *571 error for any reason assigned in a special ground of the defendant's motion for new trial.
Judgment affirmed. Felton, J.,concurs.
Concurrence Opinion
I concur in the conclusion that the evidence authorized the finding that at the time of the injury the driver was, as the defendant's servant, in and about his master's business, and that the defendant was liable. I do not concur in the theory that the defendant is liable because there was only a slight deviation by the servant from the direct route to his destinations.
