Bailey v. Murray

Mrs. Mary G. Bailey filed suit against J. M. Murray in the Superior Court of Fayette County, seeking to recover damages for personal injuries resulting when her automobile collided with a truck belonging to the defendant and driven by one of the defendant's employees. At the Conclusion of the evidence the court granted a nonsuit, and the exception is to this judgment. The sole issue in this case is whether the court erred in granting a non-suit on the theory that at the time of the injuries complained of the employee was upon his own personal business and was not acting within the scope of his employment. On considering whether the grant of a non-suit is error, the evidence is construed in favor of the plaintiff; and, if the plaintiff makes out a prima facie case, and it is sufficient, with inferences fairly drawn therefrom, to support his position, such evidence, even though slight, is sufficient to take the case to a jury. Ellison v. Evans, 85 Ga. App. 292 (69 S.E.2d 94); Brown v. Savannah Electric & Power Co., 46 Ga. App. 393 (167 S.E. 773). The evidence is undisputed that the driver of the truck, Napoleon Bracy, and three others, one of whom was Robert Rivers, were employed by the defendant on a piece-work basis to cut and haul timber over a fairly wide area in the vicinity of Jonesboro, Georgia; that the truck was ordinarily driven by one of these employees, who took it home at night, and in the morning picked up the other three and went to the place where the timber was to be cut (the defendant's contention being that only Rivers had authority to drive or keep the truck, while the plaintiff contended that all the employees, and especially Bracy, shared this authority); that three of the employees lived about three miles from Jonesboro, and the other, Rivers, lived within that town; that the place where the timber was to be cut that morning was eight or nine miles from Jonesboro, in an easterly or northeasterly direction; that Bracy had, on the previous Sunday night, driven the truck to Forest Park, where he spent the night visiting friends, and that he started back to Jonesboro about 4:30 Monday morning for the purpose of picking up Rivers and the other employees and carrying them to where the timber was being cut; that the collision occurred on a curve just outside the city limits of Forest Park; and that it was due to Bracy's failure to have the truck under control, and resulted in the plaintiff's injuries.