Moore v. DeKalb Supply Co.

Stephens, J.

1. Where it appears that the driver of an automobile is employed by the owner to operate it, the inference is authorized that the driver, when operating it along a highway, in the absence of the owner, is acting as the owner’s agent or servant. Gallagher v. Gunn, 16 Ga. App. 600 (85 S. E. 930). The driver being at the time in exclusive control of the automobile, it is apparently within the scope of his authority, as agent or servant of the owner, to eject from the automobile a trespasser or one not entitled to ride therein. This is true although the person is riding in the automobile by permission of the driver, where the driver, in granting such permission, acted beyond the scope of his authority. It follows, therefore, that where such person riding in the automobile is thrown therefrom and killed by the wilful and wanton act of the driver in operating the automobile, the owner is liable in damages. McIver v. Florida Central R. Co., 110 Ga. 223 (2) (36 S. E. 775, 65 L. R. A. 437) ; Higgins v. Southern Ry. Co., 98 Ga. 751 (25 S. E. 837) ; Smith v. S., F. & W. Ry. Co., 100 Ga. 96 (27 S. E. 725) ; Brunswick, & Western R. Co. v. Bostwick, 100 Ga. 96 (27 S. E. 725); S., F. & W. Ry. Co. v. Godkin, 104 Ga. 655 (30 S. E. 378, 69 Am. St. Rep. 187); Madden v. Mitchell Automobile Co., 21 Ga. App. 108 (94 S. E. 92). The cases of Murphey v. New South Brewery & Ice Co., 145 Ga. 561 (89 S. E. 704), Waller v. Southern Ice & Coal Co., 144 Ga. 695 (87 S. E. 888), Morris v. Fruit Co., 32 Ga. App. 788 (124 S. E. 807), are clearly distinguishable.

Decided September 14, 1925.

2. Where the driver of an automobile truck, designated as a “hopper” truck, permits another to ride in the hopper, knowing that the person riding is in a dangerous situation, in which he is likely to fall from the truck, and the driver operates the truck over a rough, unpaved roadway, down hill, and over a gully in the roadway, at a rate of speed of twenty to twenty-five miles an hour, which, speed is of such a character under the circumstances as attracts the attention of a person observing the spee'ding truck, and, as a result of such operation of the truck, the person riding in the hopper is caused to sway to one side, and, when the truck has reached a point about two and a half blocks from where it started, the person riding therein falls from the truck and is killed, the inference is authorized that the driver’s act in so operating the truck was of such a reckless character under the circumstances as to be wilful and wanton, and that such act caused the person riding in the hopper to be thrown out and killed. Dennard v. State, 14 Ga. App. 485 (81 S. E. 378); Tift v. State, 17 Ga. App. 663 (88 S. E. 41). See, in this connection, Bazemore v. Stephenson, 24 Ga. App. 180 (100 S. E. 234).

3. Where, in such a case, the wife of the person killed sued the owner of the automobile for the homicide, the inference was authorized that the death was the result- of the wilful and wanton act of the defendant, through the defendant’s servant, the driver of the automobile, acting within the scope of his authority; and there being evidence as to the value of the life of the deceased, the award of a nonsuit was improper.

Judgment reversed..

Bell, J., concurs. Jenlcins, P. J., dissents. Alston, Alston, Foster & Moise, T7. (?. Shearer, W. H. Sibley, for plaintiff. J. E. Berman, Ralph G. Sims, for defendant.