Causey v. Swift Company.

Broyles, C. J. Mrs. Causey sued Swift & Company, a corporation, to recover damages for personal injuries alleged to have been received by her in a collision, at the intersection of Montpelier and Coleman Avenues in the City of Macon, between an automobile in which she was riding and an automobile truck owned by the defendant and which was being driven by one Meadows, an employee of the defendant. On the first trial of the case a verdict for the defendant was directed, and a new trial was denied. That judgment was reversed by this court (57 Ga. App. 604, 196 S. E. 228). In that decision this court said: “The sole question presented for determination is whether, under the undisputed and uncontradicted testimony, the inference was demanded that at the time of the collision the defendant’s truck, which was being operated by its servant and driver, was being operated by the servant while on a mission of his own, and was not at the time in the prosecution of and in the scope of his master’s business.” On the first trial and on the trial now under review, the undisputed testimony showed that Meadows, after driving the truck to several places in *894 the prosecution of his master’s business, turned aside and proceeded to drive to his home for the purpose of getting his supper there; and this court held that under the evidence adduced on the first trial it failed to appear that in so doing he had made such a territorial digression as would “constitute a deviation from the master’s business.” On this question the court said: “There is absolutely no evidence in this record which shows with any degree of certainty how far Meadows had made a territorial detour from the territorial area of the truck’s operation. It may have been a block, or it may have been two blocks. The evidence tending most strongly to show that Meadows had deviated territorially from his authorized route is in his testimony. He stated that he was 'going in an entirely opposite direction’ from the route back to the defendant’s plant. It appears from the evidence that the accident happened at the intersection of Montpelier and Coleman Avenues, and near Tattnall Square. There is nothing in the evidence to indicate the location of these places. While it appears from the evidence that Meadows was going to his home at 403 Winship Street, the location of 403 Winship Street nowhere appears from the evidence. So far as it appears from the evidence, the intersection of the streets where the accident occurred, or Tattnall Square, or Meadows’ home to which he was proceeding, may have been in close proximity to the route by which he was required by the defendant to return with the truck to the plant. “It was held in Perry v. Lott, 38 Ga. App. 729 (145 S. E. 479), that where there was no evidence as to what route was pursued by the driver, whether there was a slight or a gross deviation from the direct route which it was his duty to travel, it could not be said as a matter of law that the driver had made such a deviation as took him without the scope of his employment. The court can not take judicial notice of the locality of streets or squares in a city, or the distance between various streets in a city. These are not ‘matters of public knowledge’ which can be ‘judicially recognized without the introduction of proof.’” On the trial now under review the undisputed evidence showed that Meadows was employed as a truck driver to deliver ice cream only to those places to which he was specifically directed so to do. He had the further duty, late in the afternoon, to deliver mail to the post-office, to get mail, to go from there to the Independent Laundry to pick up laundry, *895 and to return from there to the defendant’s plant. On the afternoon of the day of the collision in question he was instructed to go to the post-office and to the laundry, and then to return to the plant. He had previously been expressly instructed not to drive the truck to his home for the purpose of getting his supper there. He went to the post-office and the laundry, but instead of then returning to the plant he proceeded to drive the truck to his home for the purpose of getting his supper; and while so proceeding, and before reaching his home, the collision occurred at the intersection of Montpelier and Coleman Avenues. The defendant introduced evidence (which was not contradicted) showing that the distance from the Independent Laundry to the defendant’s plant was 3490 feet — a little less than half a mile; that the distance from the laundry, according to the route which Meadows took, to the intersection of Montpelier and Coleman Avenues was 7750 feet —about a mile and a quarter, and that the distance from said laundry to the home of Meadows (which was his destination) was 11,300 feet — a little over two miles. ■ Under the above-stated uncontradicted evidence as to the distances between the -several places mentioned (such evidence not having been introduced on the first trial), it clearly appears that the route taken by Meadows from the Independent Laundry to the intersection of Montpelier and Coleman Avenues on his way to his home for supper was not merely a slight, but was a gross, deviation from the direct route which it was his duty to take, namely, from the Independent Laundry to the defendant’s plant. It follows that such a deviation placed him without the scope of his employment. The previous decision of this court in this cause has become the law of the ease and is binding on us. That decision, in effect, held that the judgment in favor of the defendant was reversed solely on the ground that the evidence, in failing to give the distance from the defendant’s plant to the home of Meadows, or from the plant to the intersection of Montpelier and Coleman Avenues, or to indicate the location of these places, failed to show whether the territorial detour made by Meadows was a slight or a gross deviation from the direct route which it was his duty to travel. That deficiency in the evidence was supplied on the trial now under review, and the court properly directed the verdict for the defendant. The cases cited in behalf of the plaintiff are dif *896 ferentiated by their particular facts from this case. For instance, the decision in Evans v. Caldwell, 52 Ga. App. 475 (184 S. E. 440), strongly relied on by the plaintiff in error, was largely based on the “family-purpose doctrine” relative to automobiles furnished for the comfort and pleasure of one’s family. That doctrine was not involved in the instant case. The refusal to grant á new trial was not error. Judgment affirmed. MacIntyre and Gardner, JJ., concur.