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FAMBRO v. SPARKS et al.; and vice versa.
Action for damages; from Macon City Court-- Judge Baldwin. April 23, 1952.
1. The motion to dismiss the writ of error on the main bill of exceptions is denied.
2. The court did not err in refusing to admit certain testimony.
3. The evidence demanded a finding that at the time of the collision in question the employee, Jelks, was not within the scope of his employment with the defendant partners, Sparks Motor Company.
C. F. Fambro sued Albert Jelks Jr. and Sparks Motor Company, a partnership composed of Willis B. Sparks Jr., M. Garten Sparks, and Mrs. Lucile M. Sparks, for damaged allegedly due to the negligence of Jelks in the operation of an automobile while acting within the scope of his employment by Sparks Motor Company. The petition was in two counts. The first count alleged negligence on the part of Sparks Motor Company based on the doctrine of respondeat superior. The second count alleged original negligence on the part of the defendant company in hiring and retaining Jelks as an automobile salesman, when he was at all times alleged an incompetent driver, a fact known to the defendant company.
On the trial the defendant Jelks testified as follows as to count one: "In November of 1949 I was an auto salesman for Sparks Motor Company, and I was involved in the accident that has been discussed at this trial . . . While I was primarily a new car salesman, I could sell either new or used cars . . . Getting back to my employment at Sparks Motor Company, there were times when I had to be on the floor to show cars to customers who walked in. There were a couple of periods while I was there that we had a duty roster which Mr. Sparks supervised, and you would have to be present on the floor when you were supposed to be. Most of the time I was with Sparks I was provided with a car for use at night, and I was in a Sparks Motor Company car when I was involved in the accident on November 17, 1949. This car was available for sale at all times. When I went to work, Mr. Sparks told me that I could sell a car at any time, that he would be glad to open the doors at 3 a.m. I cannot recall any specific case where I was encouraged to sell a car at night. I may have used a Sparks car at night for demonstration purposes. On occasion I drove some car particularly that I thought there would be a certain market for. A certain group might be interested in that particular car, and I would try to have the car available where those people might see it. As a rule, the main thing I would go home in the car in the evening, and it was available transportation for me. Some of the time I might have, as Mr. Taylor said, steered the conversation toward the subject of automobiles. I frequently talked up the virtues of the particular car I was driving. On a couple of occasions I asked Mr. Sparks for a specific car because I thought it might interest someone that I was to see socially. I did not have a car of my own, and I had no way to get around by automobile at night unless I borrowed the car of my parents. After the normal eight-hour day, my time was free, and I could do what I chose. In answer to the question which you previously asked me on deposition, 'Would you say that it was Mr. Sparks' policy to encourage you to interest people in cars at any time you could?', I think he would have encouraged me on that, that he would have wanted me to. One reason Mr. Sparks gave me a car to use at night was that he was nice enough to do so, and I could use the car at night for whatever reasons I chose within reason. I don't know whether Mr. Sparks ever specifically told me why he gave me a car to use at night, but I presume it was to use at my discretion, and I was a representative of Sparks Motor Company as a salesman. The job of a salesman is a pretty broad term, and if you are working, you are trying to sell cars at all times, if possible. That is the way I felt about it. I did not consider that I was trying to sell a car at all times but I was whenever the opportunity arose or whenever it was a good time to mention sales. Mr. Sparks may have told me that it's customary and the policy of the other salesmen to use automobiles of the Sparks Motor Company. I recall one car in the lot that we both agreed it might be a good idea for me to use in the evenings, perhaps . . . we agreed that by my driving it perhaps to the Pig 'N Whistle, to the Bell House, or somewhere, getting out of the car and chatting with the fellows, arousing their interest in this particular automobile, that it might prove to be a possible sale. For a good salesman an opportunity arises whenever he sees anybody. Mr. Sparks instructed me in the art of salesmanship, and he never put any limits on my time. Mr. Sparks was good enough to give you credit for knowing a lot of things for your own intelligence, and he did not instruct as a sergeant would instruct a private. I don't think Mr. Sparks disapproved of my trying to sell a car at any time. He knew that I tried to sell cars at off-duty hours on occasion, and he knew this by what I told him. I don't remember Mr. Sparks' exact words, but I think he meant that he wanted me to use every contact for the purpose
of selling cars, and he probably said it. I considered that I had a mandate from him and his permission to sell his cars whenever I could, whether it was from 8:30 to 6, or after 6, or before 8:30 . . . There were a very few occasions, but some, when I would find prospects by my nighttime contacts after I left Sparks Motor Company, and some--a very few--of these contacts actually led to sales . . . Neither Mr. Sparks nor any other representative of Sparks Motor Company ever told me that I was to leave the car at home after I got there or ever protested of my nighttime use of the car . . . Turning now to the details of this particular accident, it happened one Thursday night. I had been to a Jaycee meeting after I got off from work. I went to the meeting in the 1942 Ford. The Jaycee meetings normally start at 7 o'clock, and I arrived there alone after supper, at 7:30 or 7:45, thereabouts . . . I believe I left the Jaycee meeting with Mr. Fick Taylor and Mr. John Wilkerson. We went to the Dempsey Tavern. I went down there to eat supper, and Taylor and Wilkerson accompanied me. Mr. Taylor possibly had a beer at the Tavern . . . I recall having a conversation with Jim Brenner, either in the Tavern or in front of the Dempsey, about an appointment to show him a car. I don't know that a definite appointment was made. We stayed at the Tavern about forty-five minutes and then the three of us went to the Tropics. Mr. Wilkerson went in his car, I believe, and Mr. Taylor must have gone up with me in the Sparks Motor Company car. At the Tropics we ran into and got together with Walter Graham and Ben Jones. I saw Roy Peterson at the Tropics and talked to him about cars, among other things. We discussed some buys, and I mentioned, possibly, one or two cars that I knew of that I thought would be a good buy for him . . . I want to clear up that point about my reason for going to the Tropics. Ben Jones, I believe, called the Tavern and talked to John Wilkerson. When John got back to our table, he suggested that we go up to see Ben and Walter. He said Ben had something to see him about. So we went to the Tropics. Ben asked John if he would be so good as to take him and Walter, or Walter had asked Ben to ask John. John wasn't feeling well and wanted to go on in. In turn I believe Ben asked me if I would take him out there [Green Lawn Supper Club] or something to the effect that Walter wanted to know if I would. I realized that he didn't have transportation available, and I agreed to take him if he wouldn't stay long; that I wanted to get in early." Walter Graham testified on behalf of the plaintiff as follows: "The accident happened on the Thursday before Thanksgiving. Jelks and I had gotten together that night at the Tropics Night Club on Cotton Avenue. I don't recall whom I went to the Tropics with, but I joined Ben Jones there; and when I left, I left with Mr. Jones, Mr. Jelks and Fick Taylor. The four of us went to the Green Lawn, out on Columbus Road, in a Ford that Jelks was driving . . . We were on our way back to town from the Green Lawn when the accident happened . . . I knew that Jelks was working for Sparks Motor Company, but I did not know, and it was not discussed, that the car we were in was a demonstrator available for sale. I do not recall Jelks' talking to Roy Peterson at the Tropics. I was already at the Tropics when Jelks came in. John Wilkerson came into the Tropics while I was there, and I may have asked him if he would ride me out to the Green Lawn. I had some business to take care of at the Green Lawn with Mr. Fred Berrong, and I had planned to go out in a cab if necessary. I am not positive whether I asked Wilkerson to take me, but I did want to go to the Green Lawn. I cannot be certain whether I asked Jelks to take me or not. In any event I did ride out to the Green Lawn with him, and my purpose was to transact business with Mr. Berrong. I do not know exactly how long we were there, but I imagine it was a half-hour. Within my hearing that night there was no conversation whatever with reference to the sale of an automobile by Mr. Jelks on the way to the Green Lawn or on the way back, or at the Tropics or at the Green Lawn."
Fick Taylor testified on behalf of the plaintiff in part as follows: "I did not know Jelks very well before he started to work for Sparks Motor Company, but I got to know him better after he began. He has tried to sell me a car, and he has tried on various occasions--nearly every time he rode around with me, even on social occasions. I knew the car we were in was a demonstrator, as he made that fact known all the time because he was usually trying to sell the car he was in. He had a habit of praising the car he was driving. I do not recall any particular sales conversation that night. He was always talking about trying to sell the car or any other car they had, even on social occasions. Jelks has never demonstrated a car to me, but I have been down to the showroom to look at cars. I had ridden with him in this particular Ford before, and he was always trying to sell a car. We used to eat lunch together and see each other at night . . . The purpose of our going to the Green Lawn was some business that Graham had with Fred Berrong out there that night. Jelks volunteered to take us, after being asked to by Graham. As I recall, Walter Graham and Fred Berrong talked together about business the whole time we were out there. I do not recall any mention that night on the way,to the Green Lawn or while there or while on the way back of trying to sell a car. I remember no conversation at the time on the subject of sales."
Willis B. Sparks Jr. testified substantially as follows: that he was a partner in Sparks Motor Company; that he hired Jelks during April of 1948 primarily as a new car salesman but that Jelks could sell old cars as well; that Jelks was paid a salary plus a commission; that every morning he held a sales meeting which all salesmen usually attended and that after the meeting was over he did not prescribe Jelks' schedule; that the only control he exercised over the salesmen was to observe their results; that it was possible that the company had a sales roster in 1949 and if so Jelks would have had to be on the sales floor at certain hours to take care of people who just walked in; that he instructed Jelks upon employment that the company opened at 8 a.m. and closed at 6 p.m.; that he was glad to have Jelks sell a car whenever he could, and that it would have been all right if he could sell one at 3 a.m.; that he may have made appointments for his salesmen after normal closing hours; that he furnished his salesmen with cars to work in and which they could use at night; that they paid for their own gas and for any damage to the car that happened at night but not for depreciation; that the cars were furnished salesmen because it was customary in the business, that it was to keep them happy more than anything else; that it cost him money to provide a car but that he had no other reason for furnishing a car than to keep them happy; that he never considered that his salesmen would make contacts at night; that his used car lots were kept open at night; that sometimes he provided new cars to take home at night, sometimes used ones, according to the supply of new cars; that new car demonstrators were not assigned to particular salesmen, but at various times a salesman did take one home at night; that, if a salesman was told to take a new car home and to show it to someone at night, he considered him on company business, but that he did not think a salesman was on company business just to go home in one; that he did not consider Jelks as working for him at night; that he never did tell Jelks why he let him have a car at night; that the possibility that good will for the company would be created by such a practice had nothing to do with it; that he did not consider it to his advantage to have his salesmen in a mobile state at night, and the fact that a salesman could get around and make contacts at night was practically worthless to the company; that over a long period of time he thought it was worthless to let his salesmen have a car at night; that he imagined some sales had been made as a result of an informal, social, nighttime contact, but that a man with such a contact could make a sale without a car as well as with it; that it was possible that a car would put a salesman in a position to get around more and to make more contacts; that he has a salesman who lives in Gray who makes contacts between the time he leaves the store at night and the time he comes back the next morning; that he had no policy at all regarding civic work for salesmen during off-duty hours; that to take care of civic activities, he had given salesmen time off during the day; that no restrictions were placed on the use of cars at night except that the salesmen were not to lend the car or to leave Macon and vicinity; that the car could be used for any purpose--even to carry friends to the Green Lawn; that a salesman could carry any passengers he wanted to; that it was possible that a salesman having a car at night could use it for demonstration purposes, but that he did not envision that his salesmen were not forbidden nor encouraged to make contacts at night; that they were encouraged to make as many contacts as they could, and it didn't make any difference whether it was at night or in the daytime; that he believed some
nighttime contacts had led to the sale of a new car demonstrator that the salesman was driving, but that he didn't recall a single instance where a salesman sold a used car he was driving at night; that while it was conceivable that the company might have benefited from nighttime contacts, he didn't think it had much value.
At the conclusion of the plaintiff's evidence, the defendant partners, Sparks Motor Company, moved for a nonsuit as to them. The court granted such motion and dismissed the action on both counts as to the moving defendants, and entered an order staying further proceedings against the defendant Jelks until the issue raised by the grant of the nonsuit could be finally determined, and the plaintiff excepts.
By cross-bill of exceptions the defendant partners, Sparks Motor Company, assign error on their exceptions pendente lite to the overruling of certain demurrers to an amendment to the petition allowed by the court.
1. The defendant in error in the main bill moves to dismiss the writ of error on the ground that the action against she defendant partners, Sparks Motor Company, and the defendant Jelks was a joint cause of action and contends that, where more persons than one are sued as defendants on a joint cause of action, a direct bill of exceptions to this court will not lie to a ruling dismissing the action as to some of the defendants, but that the plaintiff must proceed against the remaining defendants to a final judgment before he is entitled to bring the antecedent ruling to this court for a review. While we agree that the contention states a correct principle of law as to joint causes of action ( Johnson v. Motor Contract Co., 186 Ga. 466, 198 S. E. 59), we do not agree that the instant action is a joint cause of action such as would make this principle of law applicable here. The action was not joint as to the first count because it was based on a simple respondeat superior principle wherein the servant is not a necessary party to an action against the master, and vice versa as to an action against the servant alone. Edwards v. Gulf Oil Co., 69 Ga. App. 140 (24 S. E. 2d, 843) and citations. The action was not joint as to the second count because it was based on the alleged negligence of the defendant partners, Sparks Motor Company, in selecting and retaining in their employ a person known to them to be an incompetent driver. In an action on this theory the defendant Jelks was not a necessary party. The motion to dismiss the main writ of error is without merit, and is denied.
2. The plaintiff in error in the main bill assigns error on the refusal by the court to admit certain testimony of the defendant Jelks. The plaintiff in error offered to prove that a friend told Jelks that he needed an insurance policy and that Jelks went to Willis B. Sparks Jr., a member of the defendant partnership, and asked him about it and that Sparks told him that he (Jelks) was covered by his (Sparks') policy and that Sparks knew that his insurance policy did not cover anyone unless he was on the business of Sparks Motor Company. The plaintiff in error proposed to prove the above facts by Jelks and Sparks when they were on the stand for the purpose of cross-examination. The court did not err in refusing to admit the testimony because it did not appear and the plaintiff in error did not propose to show that Jelks knew what the Sparks insurance policy provided so as to authorize an inference that the parties impliedly agreed that Jelks was to be considered on his employer's business at all times when he was operating one of the employer's automobiles. Sparks Motor Company could not be held liable in this case under the doctrine of estoppel, as the principle could only operate as between Jelks and his employer, if in fact it could operate at all, a point we do not decide.
3. The plaintiff contended, under count one of the petition, that, at the time of the collision between his automobile and the one driven by Jelks, Jelks was acting within the scope of his employment with Sparks Motor Company. The evidence failed to establish such a fact. The following statement from the plaintiff in error's brief sums up his argument as to count one: "We believe that the broad instructions given Jelks, that he could sell a car at any time, the encouragement given him to do so, the fact that by furnishing him with a company car Sparks made it possible for him to sell at all times and to make contacts at all times, and the fact that the previous nighttime selling activities had been ratified, all showed a clear permission for Jelks to act as an agent of Sparks within the scope of his employment as a salesman whenever and wherever he saw fit to try to sell a car. The evidence was that Jelks sought to sell a car often and regularly while on what at first might seem to be a purely social venture. Under this broad mandate given him, he was an agent on the job whenever he was trying to sell a car for his own benefit and for that of his employer." (Emphasis supplied.) This contention is not inconsistent with our holding here, and we agree that, whenever Jelks attempted to or did sell a Sparks automobile at night or during his social hours, he was within the scope of his authority and employment. However, we think that the evidence here plainly does not show that on the occasion in question Jelks was trying to sell the car he was driving or any other car. Both Walter Graham and Fick Taylor testified that they remembered no sales conversation at all on the night of the collision. Jelks did testify that while at the Tropics he saw Roy Peterson and talked with him about cars, among other things, and that they discussed some buys, and that he, Jelks, mentioned, possibly, one or two cars that he knew of that he thought would be a good buy for Peterson. However, Peterson did not accompany Jelks and the others to the Green Lawn Supper Club nor was he a passenger in the automobile at the time of the collision. If, as contended by the plaintiff in error, Jelks did have some subtle notions of salesmanship lurking in his mind during the trip to and from the Green Lawn, they were not put into overt acts of salesmanship by Jelks, as the evidence shows that during such time no sales conversation took place. Some of the cases relied upon by the plaintiff in error are workmen's compensation cases concerning traveling salesmen and clearly are not applicable here. The cases of Hall v. Cassell, 79 Ga. App. 7 (52 S. E. 2d, 639), and Dawson Motor Co. v. Petty, 53 Ga. App. 746 (186 S. E. 877), are distinguishable from the instant case. In the Hall case the defendant's employee, Garmon, was taking one of the defendant's automobiles home with him so that he might demonstrate it to any prospective buyers. The automobile had been advertised for sale by the defendant Hall in the Atlanta Journal, the advertisement having Garmon's home telephone
number in it. On the way home with the automobile Garmon stopped at a grocery store. While proceeding from the grocery store to his home in the automobile, Garmon struck and killed the plaintiff's husband. It was there held that at the time he struck and killed the plaintiff's husband, Garmon was within the scope of his employment. Garmon was proceeding from the grocery store to his home for the purpose of specifically having the automobile available to show to prospective purchasers who answered the advertisement. We think that the following statement by the court in the Hall case shows the distinction between that case and the instant case: "If Garmon had been on his way home in a car he had merely borrowed from Hall, or in a car owned by Hall that he was using as a mere privilege or courtesy, the ruling in the Stenger case might be in point; but as already stated, Garmon was doing more than merely going home when his car struck the plaintiff's husband. He was taking the car to his home upon express orders and directions of Hall, so that it would be available and could be shown or demonstrated on Sunday, when the car lot was closed, to any prospective purchaser who might inquire that day." (Emphasis supplied.) In the instant case, Jelks, during the trip to and from the Green Lawn Supper Club, was using the automobile as a privilege or courtesy of Sparks Motor Company. In the Petty case the defendant's agent, "in connection with his employment . . . was furnished a new-model Ford V-8 as a demonstration car, his duty being to demonstrate these cars to prospective customers." The court decided the case upon the premise that the facts gave rise to a presumption that at the time of the injuries the defendant's officer was on the business of the company, and that no evidence was introduced to rebut the presumption. In the instant case, we have all the facts surrounding the issue, in which event no presumption obtains.
4. The second count of the petition charged that the defendant partners were negligent in hiring and retaining in their employ an incompetent driver. The plaintiff sought to prove Jelks' alleged incompetency by showing that Jelks had had two automobile collisions prior to the collision in the instant case and while in the employ of the defendant partners and to their knowledge. Jelks was hired by Sparks Motor Company in April of 1948. Between that time and November 17, 1949, the date of the collision in the instant case, Jelks was involved in two automobile collisions. The evidence as to the details of these two collisions was the testimony of Jelks himself. As to the first he testified: "I was coming around a bad curve and wasn't able to make it. I ran into a tree or post and, in turn, clipped down a couple of mail boxes. I wasn't familiar with the curve. My speed may have been around fifty-five to sixty miles per hour. I have never found out the exact speed limit, but I would think that there is now a thirty-five miles per hour zone. If you stop your car and look closely at the sign, it says that. There was a lot of sand in the road and I wasn't able to brake the car. The accident may have been caused by my excessive speed in going around the curve but not so much that as an unfamiliarity with the road. The curve is where the busses turn around, and it curved to my right. A tree was on the left-hand side of the road and I didn't realize that the curve was there until I had gotten on across to the left side of the road. Speed may have had some connection with the accident, but primarily it was unfamiliarity with the road. I had had no occasion to travel in that section of town, although I have lived in Macon all my life." As to the second, Jelks testified: "Turning to the accident on Vineville, it happened about 4 o'clock one afternoon when I was driving out to see a prospect. There was a bunch of cars stopped ahead; I stopped; and then as I started up I went on behind and the car ahead of me suddenly stopped again and I ran into the rear end of it. No damage was done to the other car, but my grill and lights were damaged." Whether the method of proving incompetency of a driver be by reputation or by specific acts (accidents, etc.), or by either one or by both, we do not think that incompetency was proved by either method in this case. No evidence at all was introduced as to Jelks' reputation as a driver. Assuming that the two accidents just above referred to were his fault, we do not think that two isolated instances of negligence of such divergent character could possibly authorize a conclusion that the party guilty thereof was incompetent ever to drive an automobile.
The court did not err in granting a nonsuit as to the defendants, Sparks Motor Company.
Judgment affirmed on the main bill; the cross-bill of exceptions is dismissed. Sutton, C. J., and Worrill, J., concur.
Jones, Sparks, Benton & Cork, Clarence H. Clay Jr., contra.
Culpepper & Culpepper, Harris, Russell, Weaver & Watkins, John D. Comer, for plaintiff in error.
Saturday May 23 04:43 EDT

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