HEC Manufacturing Co. v. Heaven , 38 Ga. App. 460 ( 1928 )

Luke, J.

Heaven brought suit for damages against Hec Manufacturing Company, and alleged substantially that he was an employee of that company, and that as such employee he was directed by the president, secretary and manager of the company to go to Jacksonville, Florida, for the purpose of making installation of fixtures for and in behalf of the company; that said president directed the plaintiff to go in an automobile with him; that the automobile was being operated and driven by the said president, and was under his direct control; and that while the plaintiff was occupying a back seat in the automobile, the driver began running at the unlawful rate of speed of more than fifty miles per hour, and, while so operating the car, lost control of it and drove it into an embankment; and because of the impact of the car against the embankment the plaintiff received the injury sued for. It was alleged that the operation of the car was negligent, in that the speed on the public highway was unlawful, and that upon approaching the curve where the injury occurred the automobile was not under control, etc. The Hee Manufacturing Company demurred generally to the petition, upon the grounds that no cause of action was set out, and that the petition showed that the injury was occasioned by a fellow servant, etc. The court overruled the demurrer.

Construing the petition most strongly against the pleader, the court did not err in overruling the general demurrer. There is nothing to show that the president of the company was a fellow servant at the time of the injury. It is true that he could be a fellow servant notwithstanding his official connection with the company, but the pleading does not show this. The evidence upon a trial may.

Judgment affirmed.

Broyles, G. J., and Bloodworfh, J., concur.