Early v. Ramey

Dejen, Judge. W. H. Early’s testimony was to the effect that he had 4 to 7 employees working for him cutting pulpwood for which he paid on a piecework basis. He owned a half-ton truck which was used by himself and another employee to pick up the hands; employees were allowed to use the truck on occasion and he had allowed Jackson to use it when Jackson was moving. On the day of the accident he went to the cutting area about 2 p.m. and found Jackson and the truck gone and himself took the hands back to a meeting point where Jackson met them “after the funeral.” This last statement, given without explanation, and construed as it must be against the movant, is only hearsay insofar as it is sought to prove by Early that Jackson was on a personal mission with the truck and not on business of his employer. Jackson himself testified that a relative had died, and that he took the truck without notifying Early or obtaining his permission, picked up some other relatives, helped to dig the grave, bought his wife a dress, and attended the funeral, before returning the truck to its owner at the service station. The plaintiff then proved by counter-affidavit that Jackson had made a prior contradictory statement that when the accident occurred, “I had been to the saw shop and was going to East Rome.” It is of course possible that this defendant could have been both to the saw shop in the course of his employer’s business and also to a funeral on his own business, and it is not clear in what direction East Rome was from the place where the trees were being cut. The statement, if contradictory, would have no probative value of [623] its own but would allow the jury to disbelieve the defendant’s sworn testimony in whole or in part. Code § 38-1803. “The evidence of previous contradictory statements related to have been made by a witness sought to be impeached is not affirmative proof of the truth of such previous statements.” Luke v. Cannon, 4 Ga. App. 538 (4) (62 SE 110). This is true where the witness is not a party opponent; the admission against interest of a party does have probative value. W. T. Harvey Lumber Co. v. J. M. Wells Lumber Co., 104 Ga. App. 498 (2) (122 SE2d 143). But here the motion for summary judgment concerns only Early, the employer, and “the declarations of the agent as to the business transacted by him shall not be admissible against his principal, unless they were a part of the negotiation, and constituting the res gestae, or else the agent is dead.” Code § 4-315. Therefore, treating the contradictory matter only as opening the credibility of Jackson to jury determination, we are left with the deposition of Early which, insofar as it deals with the purpose for which the truck was taken, is apparently hearsay. The substantivo law in respondeat superior situations is well settled and ably summarized in Price v. Star Service &c. Corp., 119 Ga. App. 171 (166 SE2d 593). Mere proof that Early was the owner of the truck would not be sufficient to establish, even prima facie, that the car was being driven by a servant about the owner’s business (Gillespie v. Mullally, 30 Ga. App. 118 (117 SE 98)) but there is an inference that when á vehicle is operated by an employee of the owner it is operated within the scope of his employment and duty, which is a prima facie inference of fact sufficient to carry the case in the absence of evidence to the contrary (J. W. Starr & Sons Lumber Co. v. York, 89 Ga. App. 22 (2) (78 SE2d 429)) and to shift the burden of procedure to the opposite party. Positive, unimpeached evidence to the contrary will demand a verdict against the agency relationship; such evidence, itself contradicted by evidence supporting the inference drawn from proof of ownership plus employment will make a jury question, even though both the employer and the employee deny that the vehicle was used within the scope of the employment. F. E. Fortenberry & [624] Sons v. Malmberg, 97 Ga. App. 162 (102 SE2d 667). Applied to the present case, and construing legitimate inferences against the movant, a prima facie inference of imputed negligence arises against Early from proof of ownership plus employment of the driver. If, as appears necessary in considering the motion, Jackson’s deposition must be disregarded because his credibility has been attacked through a prior contradictory statement, and Early’s slight reference to the use to which the truck was being put does not appear to have been made within his own knowledge, the presumption of agency arising from proof of ownership and employment is at this point sufficient to carry the case to a jury. The trial court did not err in overruling the motion for summary judgment. Judgment affirmed. Bell, P. J., concurs. Eberhardt, J., concurs specially.