Nicholas v. Callaway , 72 Ga. App. 41 ( 1945 )

1. The instant case belongs to that class of cases where the servant started on a trip to serve his own purposes (and he was serving such purposes both in the going and the returning), and not to that class where the trip was commenced and ended in the master's service, but a variance from the expected course was made. 7-8 Huddy's Cyclopedia of Automobile Law (9th ed.), p. 257.

2. Where the journey upon which the servant starts is wholly for his own purposes and without the knowledge and consent of the master, during the interval of this trip the master will not be liable for the acts of negligence of the servant.

DECIDED JANUARY 19, 1945. This was an action by Nicholas against Callaway to recover for damages to his car caused by a collision with a truck owned by Callaway and driven by one Wells. The following is, in effect, the undisputed testimony of Wells, the driver, and Callaway, the owner of the truck in question, as it relates to the question whether at the time of the collision Wells was acting within or without the scope of his employment. Wells's testimony, in part, was to the following effect: "I am a driver for Mr. Callaway. I have been working for Mr. Callaway right around a year. I would bring the truck in [to my home] at night and then go back in it the next day. I did this with Mr. Callaway's knowledge and consent. I did not store this truck at the Chevrolet place every night. I generally took it on to the house. This is the truck I drove regularly. On this particular occasion I left it at the plant, at Mr. Callaway's, for one of the other boys was to make a trip that night. The next morning one of the other drivers came down and told me about it being at the Chevrolet place. Generally, there are some of them up there, so I went to see where my truck was . . I was up there looking for my truck. I was going to haul some spreads that morning [to Canton, another town or city], but when I got to the garage I found that the engine wouldn't [hardly] run. It was missing and skipping. I was going on a trip to Canton, but the truck was in too bad shape to take out [make the trip]. I was going down to tell my wife about the truck and come back to the [Chevrolet] garage — leave it there so they could fix it. It was my instruction from Mr. Callaway, if anything got in bad repair to always take it to the Chevrolet place to be repaired. As far as I know, Mr. Callaway did not know that I was going to tell my wife anything." Callaway testified, in part, as follows: "I use a number of trucks in connection with my business. Mr. Wells was driving one of my trucks on the occasion in question. He [Wells] was supposed to make a trip from the laundry to Canton and back. He was to carry something over, and he was going to get something. I was at home that morning. Mr. Wells had permission to leave the truck at his house at night, when he was down this way — spend the night, and come back. It was no business of mine that he notify his wife that he wasn't going to Canton that day. Something had happened to the truck the night before. When I examined the motor the valves were in bad shape — skipping." The judge directed a verdict against Nicholas [the plaintiff] and he excepted. In the instant case the driver [servant] knew that the truck of the master was so injured that it could not be used for the general purpose of making the trip to Canton, a nearby town, in the business of the master, as he had been instructed to do on the day in question. So, instead of making the expected business trip to Canton for his master, the servant decided, without consulting the master, to start on a trip to his home to inform his wife that he was not going to Canton, as he had expected to do, and before he reached his home he collided with the automobile in question. When Wells took the truck, in its injured condition, from the garage where it had been left by the master the night before, it was not to drive it on any general business trip for his employer, but to make a special trip to inform his wife that he was not going to Canton, and the collision in question happened while he was in route from the garage to his home. A different question might be presented if the employee had started on a general business trip for his employer and merely diverged from such course by a slight deviation incidental to his employment. In the instant case, the servant had withdrawn the truck in an injured condition from the garage without the knowledge or the consent of the employer, and had started on a journey wholly for his own purpose. So far as the evidence shows, it was entirely immaterial to the employer whether the employee's wife knew that he [the servant] was not going to Canton. Thus the journey upon which the servant had started was only for his own purposes and without the knowledge and consent of his master. And during the interval of this trip the master was not liable for the negligence of the servant, and the judge did not err in directing a verdict against Nicholas. SeeReddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga. App. 117 (185 S.E. 147); McEntire v. King, 59 Ga. App. 865 (2 S.E.2d 195); Georgia Power Co. v. Shipp, 195 Ga. 446 (24 S.E.2d 764); Dawson Chevrolet Co. v. Ford, 47 Ga. App. 312 (170 S.E. 306); Savannah Elec. Co. v. Hodges, 6 Ga. App. 470 (65 S.E. 322); Gillespie v. Mullally, 30 Ga. App. 118 (117 S.E. 98); Wilson v. Quick-Tire Service, 32 Ga. App. 310 (123 S.E. 733); Lewis v. Amorous, 3 Ga. App. 50 (59 S.E. 338);Garner v. Souders, 20 Ga. App. 242 (92 S.E. 965);Dougherty v. Woodward, 21 Ga. App. 427 (94 S.E. 636);Fielder v. Davison, 139 Ga. 509 (77 S.E. 618).

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.