Burns v. United Parcel Service, Inc. , 135 Ga. App. 890 ( 1975 )

135 Ga. App. 890 (1975) 219 S.E.2d 624

BURNS
v.
UNITED PARCEL SERVICE, INC.

51130.

Court of Appeals of Georgia.

Submitted September 17, 1975. Decided September 29, 1975.

O'Brien, Smith & Reily, Michael J. Reily, for appellant.

Swift, Currie, McGhee & Hiers, George W. Hart, for appellee.

BELL, Chief Judge.

This is an appeal from the grant of a motion for directed verdict for defendant in a personal injury suit where plaintiff alleged that defendant's truck, operated by its agent within the scope of his employment, negligently collided with a truck driven by plaintiff.

At trial plaintiff established by his testimony that a tractor-trailer truck with the letters "UPS" on the door of the tractor forced him off the highway; that the tractor was brown and the trailer was silver or aluminum; and that he could not identify the driver. A representative of defendant testified that the tractor-trailer trucks operated by defendant generally consist of a brown tractor with a grey trailer with the initials "UPS" appearing on the doors of the tractor and above the wheels of the trailer units. No other evidence was submitted on the issue of ownership of the vehicle and the alleged agency relationship of the defendant and the unidentified driver. Held:

We affirm. We have held in very similar factual situations that plaintiff's evidence as to the type of truck marked with a distinctive insignia was insufficient to authorize inferences of ownership of the tractor-trailer; or that it was being operated by an agent or employee of defendant in the course of his employment. Southern R. Co. v. Hullender, 62 Ga. App. 274 (8 SE2d 674); Clark v. Veterans Transportation, 113 Ga. App. 531 (148 SE2d 921). Plaintiff failed to prove a prima facie case of liability. The directed verdict for defendant was correct.

Judgment affirmed. Webb and Marshall, JJ., concur.