Lunsford v. Carden , 64 Ga. App. 349 ( 1941 )

1. The evidence, though conflicting, was sufficient to authorize the verdict in favor of the plaintiff.

2. The charge of the court was not error for the reason assigned.

3. The court did not err in overruling the motion for new trial.

DECIDED FEBRUARY 8, 1941. STATEMENT OF FACTS BY SUTTON, J. Roscoe Carden sued the Stewart Avenue Ice Company, a partnership composed of Ernest Lunsford and William O. Wilson, for damages to his truck and the loss of the use of it in the sum of $362.50. Will Ransom was named also as a defendant in the suit, but he died without being served. It was alleged in the petition that on May 31, 1937, the plaintiff's Dodge truck was properly parked by the curb in front of his home on Hugh Street in Atlanta, and that Will Ransom, an agent, servant, or employee of the defendant partnership, while driving a truck belonging to the partnership to a garage for repairs, negligently drove it into the plaintiff's truck, thereby causing the damages sued for; that when the accident occurred the truck was being driven by the negro. Will Ransom, at the request and direction of the defendant partnership to a certain garage for repairs; that the truck was being driven at an unlawful rate of speed of forty-five miles per hour, in violation of a city ordinance; that the truck was in bad condition, and it was an act of negligence to drive or cause it to be driven on the streets of Atlanta at any speed. The defendant filed an answer and denied the ownership of the truck, the agency of the negro driver, Will Ransom, and denied any liability to the plaintiff. The case proceeded to trial and resulted in a verdict for the plaintiff for the amount sued for. The defendant's motion for new trial was overruled, and the exception here is to that judgment.

Whether or not the partnership was the owner of the truck that ran into the plaintiff's truck, and whether or not Will Ransom, the driver, was operating it as the agent or servant of the defendant at the time of the accident, are the controlling questions in this case. The plaintiff testified that he was in his shop about twenty-five feet from where the accident occurred, and that he heard the crash and immediately ran to the scene of the accident; that the Stewart Avenue Ice Company was located only a block away and that Mr. Wilson, a member of the partnership, came to the scene within a few minutes after the accident happened; that "Mr. Wilson just told me it was a pretty bad wreck and I said ``Yes.' I said ``Whose truck is that?' He says ``It is ours,' meaning the ice company, and I said ``Well, I was parked there right and it looks like that you should be responsible for the damage on it.' He said ``Yes, have it fixed up and I will see about paying you for it.' He said he was sending him over to Lee Street Garage with it to have it fixed. We were talking about what is known as the drag link. It had fallen off. That is what caused this accident, and I said ``Well, it was just worn out and dropped down.' He said ``Yes. I was sending it over to the garage to have it fixed.'" The plaintiff further testified that a policeman came up and wanted to send the truck that Will Ransom was driving to the Spider Garage, but Mr. Wilson objected and said "the truck belonged to them. He said it was his truck. He didn't want it to go in to Spider Garage, wanted it to go on over to Lee Street Garage where he was sending it." It appeared from the evidence that the truck being driven by Will Ransom was registered with the State Revenue Commission in the name of the Stewart Avenue Ice Company on April 16, 1937.

W. O. Wilson, one of the members of the partnership, testified that the Stewart Avenue Ice Company sold the truck in question to Will Ransom on April 16, 1937, and that they took a retention-title contract from him to the truck; that the partnership did not own the truck and had no control of it or Will Ransom at the time of the alleged accident. He denied that he told the plaintiff it was their truck and that he would pay the damage. C. B. Carder, notary public, and employee of the ice company, testified that the retention-of-title contract was executed on April 16, 1937, and that the truck had not been in the possession of the ice company since that time. R. B. Irvin, an employee of the ice company, also testified that the truck was sold to Will Ransom. The retention-of-title contract, dated April 16, 1937, was introduced in evidence, which showed that it was recorded June 18, 1937, some two months after the date of its execution and eighteen days after the accident in question. There was no issue as to the amount of the damages sued for. 1. The evidence, though conflicting, was sufficient to authorize the verdict in favor of the plaintiff. According to the plaintiff's testimony, W. O. Wilson, one of the members of the defendant partnership, appeared at the scene of the accident within a few minutes after the collision occurred, and stated to the plaintiff that the truck belonged to them, that he was having it sent to the garage for repairs when the accident happened, and told the plaintiff to have his truck repaired and he would pay the damages; that he also made a similar statement to a policeman at that time as to the ownership of the truck, and objected to the policeman having it sent to the Spider Garage, where the city was accustomed to send wrecked cars, but insisted that it be carried to the Lee Street Garage where he said he was having it sent when the accident occurred. Mr. Wilson in his testimony denied that he made the declarations as to the ownership of the truck and the purpose for which it was being driven at the time of the accident, and further testified that the truck was sold by them (the partnership) to Will Ransom on April 16, 1937. A retention-title note for the truck from Ransom to the ice company was introduced in evidence. It showed that it was recorded more than two months after the date of its execution and eighteen days after the accident in question. The license number for the truck was registered in the name of the partnership on April 16, 1937. Under the evidence the jury was authorized to find that at the time of the accident the truck in question was owned or controlled by the partnership, and that it was being driven by their agent and for their use or benefit. See Collier v.Schoenberg, 26 Ga. App. 496 (106 S.E. 581); Simmons v. Jones, 55 Ga. App. 831, 833 (191 S.E. 490).

2. The amended motion for new trial complains of the following charge of the court: "Now, I charge you, gentlemen of the jury, that in considering this case, if you believe from all the evidence that this negro, Will Ransom, was the employee and servant of the defendants in this case, and you believe at the time of the alleged occurrence that Will Ransom was under the control of the defendants and was about their business and about his employment with the defendants and in the course of his employment, then I charge you that if you further believe that Will Ransom was negligent, then his negligence, if any, would be imputable to the defendants in this case," on the ground that it "was insufficient to inform the jury as to the liability of movants, if the jury found that the truck in question had in fact been sold to the driver and delivered to the driver's possession even though a retention-title note had been taken by movants to secure the purchase-money." This charge stated a correct principle of law and was not error for the reason assigned. If an additional charge in this connection had been desired, it should have been specially requested.

3. The court did not err in overruling the defendant's motion for new trial.

Judgment affirmed. Stephens, P. J., and Felton, J.,concur.