Cooper v. Plott

Hall, Presiding Judge.

The Supreme Court of Georgia upon writ of certiorari has affirmed in part and reversed in part this court’s judgment in the above cases. See 121 Ga. App. 488 (174 SE2d 446) and 226 Ga. 647 (177 SE2d 82). The defendant was sued under the doctrine of respondeat superior for the negligence of his truck driver. In his defensive pleadings he ¿lleged that the truck was being controlled by a flagman. However, he admitted in his answers to interrogatories that the driver was an employee of his, working for him driving his truck, at the time of the collision. The trial court granted a partial summary judgment for the plaintiff, stating that the alleged negligent driver was an employee of the defendant acting within the scope of his employment at the time of the collision. We affirmed the judgment of the trial court that this admis-

Decided October 19, 1970. Long, Weinberg, Ansley & Wheeler, Ben Weinberg, Jr., J. Kenneth Moorman, for appellant. Dunaway, Shelfer, Haas & Newberry, George A. Haas, for appellees.

sion pierced the allegations of the pleadings, proved a prima facie case of liability and cast the burden on the defendant to produce counterproof or suffer judgment (Crutcher v. Crawford Land Co., 220 Ga. 298, 304 (138 SE2d 580)) and that proof that defendant had loaned the truck and driver to a third party who gave directions for the movement of the truck did not create a jury issue on the three requirements of defending under the "borrowed servant doctrine.” The Supreme Court has held to the contrary and we must therefore vacate our judgment and reverse the ruling of the trial court granting a partial summary judgment to plaintiffs.

Judgment reversed in part; affirmed in part.

Jordan, P. J., and Whitman, J., concur.