33 S.E.2d 39 | Ga. Ct. App. | 1945
1. The court did not err in disallowing the amendment to the declaration in attachment. The allegations in the amendment were contradictory to those in the declaration, and, since the contradictory statements in the declaration were not stricken, the new allegations could have been made only by the addition of a new count. Since it did not appear upon what ground the court disallowed the amendment, his judgment will be affirmed if the disallowance was proper for any reason.
2. The award of a nonsuit was proper because the evidence failed to show that the defendant's servant had authority to procure another person to drive his truck or that he ratified such conduct of his servant. Assuming for the sake of argument that he would be liable for his servant's negligence in selecting another to drive his truck, or for negligence in failing to control his servant's conduct, the evidence in this case fails to show liability. There was no evidence that the servant selected an unknown substitute or knew or had reason to believe that he was selecting an incompetent person or substitute.
1. It does not appear from the record what objection or objections were made to the amendment. In such a case if the court was authorized to disallow it for any reason his judgment disallowing it will be affirmed. White v. Little,
2. There was no evidence that the defendant's employee was driving the truck at the time of the collision. Assuming for the sake of argument that the evidence shows that the soldier was driving the truck at the time of the collision, there is no evidence that the defendant's employee had authority to permit him to drive the truck or that the defendant ratified such permission. Nor was there any evidence that the defendant's employee procured an unknown person to drive or had any reason to suspect that he was permitting an incompetent or careless person to operate the truck; nor was it shown that at the time immediately preceding the collision *91
and at the time thereof that the circumstances were such that the defendant's employee could have so controlled or directed the soldier's conduct as to have avoided the collision and that his failure to do so was negligence on his part. It was shown by hearsay evidence that the defendant's employee was asleep at the time of the collision. Of course, such evidence proves nothing; but it illustrates the necessity of the plaintiff's showing that the employee was negligent in selecting an incompetent driver, and therefore negligent in going to sleep, or that the employee could have prevented the collision by controlling the driver. If the employee was not negligent in selecting an incompetent substitute he would not have been negligent in going to sleep. In saying what we have said above we are not to be understood as holding that the defendant would be liable if he selected an incompetent driver with the knowledge that he was incompetent, or in selecting a driver whose qualifications he did not know. It was held in Cooper v. Lowery,
Judgment affirmed. Sutton, P. J., and Parker, J., concur. *92