45 Ga. App. 688 | Ga. Ct. App. | 1932
Lead Opinion
This was a suit for personal injuries to the plaintiff, a boy of fourteen years, when he was run down -by a motorcycle belonging to the defendant and ridden by a negro messenger-boy of the defendant, a druggist. At the time of the accident the plaintiff was preparing to board a street-car at the corner of Euclid Avenue and Washita Avenue, in the City of Atlanta, and it was alleged, and the testimony on behalf of the plaintiff was such as to show, that the defendant’s employee drove past the standing streetcar, in violation of law, and struck the plaintiff. The principal point at issue on the trial was whether the messenger-boy was acting in the prosecution of and within the scope of the defendant’s business at the time of the injury to the plaintiff. On this point the undisputed evidence shows the following: The defendant’s drug-store is on Ponce de Leon Avenue, in the City of Atlanta, between Highland Avenue and Moreland Avenue. On the day of the accident and some little time prior thereto the defendant had sent the messenger-boy to an address on Clifton Road, also in the City of Atlanta, to deliver a package. He had no other package to deliver. The address on Clifton Road is almost due east of the defendant’s drug-store, and the direct route from the drug-store to Clifton Road would be along Ponce de Leon Avenue to Clifton Road, and thence along Clifton Road to the point of delivery. The place of the accident is almost due south of the drug-store of the defendant, and about a mile eff the route that the messenger had to travel in going to and returning from the Clifton Road address. The messenger testified that instead of returning directly to the drug-store from the Clifton Road address, he went in a southerly direction to some place on Auburn Avenue to obtain a pair of pants,
It is a well-established principle of law that if a servant steps aside from his master’s business, for however short a time, to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not. Savannah Electric Co. v. Hodges, 6 Ga. App. 470 (65 S. E. 322). This is in accord with the principle stated by the Civil Code (1910), § 4413, which makes every person liable for torts committed by his servant “by his command or in the prosecution and within the scope of his business,” since, in order to render a master liable for the tort of a servant, the servant must be acting both in the prosecution and within the scope of the master’s business. Greeson v. Bailey, 167 Ga. 638 (146 S. E. 490). While it has been held that “if a servant or employee, while engaged in the business of his master, makes a slight deviation for ends of his own, the master remains liable when the act was so closely connected with the master’s affairs that, though the servant may derive some benefit from it, it may nevertheless fairly be regarded as within the course of his employment” (Limerick v. Roberts, 32 Ga. App. 755, 124 S. E. 806), the doctrine thus stated can not fairly have application to facts such as those disclosed by the instant record. The employee in this case was on a mission purely personal to himself, and in which, so far as the evidence discloses, the master had no interest whatever. He had been sent on an errand to a particular place, and, after delivering the package, instead of returning directly to the place of business of his master, departed in a totally different direction on a mission of his own.
The verdict in favor of the plaintiff as against the defendant master was not authorized, and must be set aside.
Judgment reversed.
Dissenting Opinion
dissenting. It is clearly inferable from the evidence, that, irrespective of any deviation from the direct route back to the store, the driver of the motorcycle was returning to the defendant’s store. It is also inferable that the driver was employed generally at the store to make deliveries, and whether, in returning, he deviated from the direct route or not, it was certainly necessary for him to return to the store for the further performance of his duties in making other deliveries. The defendant himself, in a conversation with the plaintiff’s father a short while after the accident,
Rehearing
ON MOTION TOR REHEARING.
By a motion for rehearing the plaintiff insists that this court overlooked the testimony of the plaintiff’s father, to the effect, as stated by the motion, that shortly after the accident “the defendant told him that Daniel [the delivery boy] was on a delivery at the time.” The entire testimony of the plaintiff’s father in this respect, on direct examination, was as follows : “After the accident I had a conversation with Mr. Selman. He approached me about the third day after it happened. He said that he owned the motorcycle that struck the boy, and that the boy was employed by him; that was the boy that struck Jimmie.” Immediately following the
We do not think the jury would have been authorized to isolate from the entire conversation between the defendant and the plaintiff’s father the single expression that “he said he was on delivery,’’ and construe that as an admission on the part of the defendant that at the time of the accident the delivery boy was acting in the prosecution of and within the scope of his emplojonent. It was nowhere contended by the defendant that the delivery boy was not in his employment and he freely testified that the delivery boy left his store, on his motorcycle, to make a delivery. That seems to be the purport of his conversation with the plaintiff’s father, and these facts were undisputed. The weakness of the plaintiff’s case lay in the fact that after making the delivery the servant stepped aside from his master’s business to do an act entirely disconnected from it, and in which the master had no concern. The admission of the defendant was simply to the effect that the delivery boy had left the store to make a delivery, and under no reasonable interpretation could it be construed as an admission that he had not stepped aside from his duties at the time the accident occurred, which the evidence demonstrates was in fact the case.
Movant also in his motion for rehearing cites Yellow Gab Co. v. Nelson, 35 Ga. App. 694 (134 S. E. 822). As was held in that case, had there been no other testimony on the subject, the jury might have been authorized to infer from the proof that at the time of the accident the servant of the defendant was operating the defendant’s motorcycle upon the public streets in the usual and ordinary way, that the servant was using it in the prosecution of the owner’s business; but no such inference could be authorized, in view of the plain and undisputed testimony from every witness who had any knowledge of the facts, that in this case such was not true,
Rehearing denied.