1. An assignment of error is without merit which challenges a charge of the court to the jury that allegations of a petition admitted to be true in the answer of a defendant will not require proofs but may be taken as true, notwithstanding the answer be stricken by amendment, *Page 816 when it further appears that the amendment in effect, though enlarging thereon, retained and reaffirmed the admissions in the connection in which they were originally made, and only had the effect of denying the allegations as they might relate to other and different phases of the case not contemplated in the original admissions, when in such latter instances proofs would be required.
2. An exclamation, "driving like that he will land in hell," is not admissible as a part of the res gestae of an automobile collision, when it appears that such exclamation was not made immediately and coexistently with the collision, but by a witness prior thereto on observing the plaintiff's car passing at an estimated rate of seventy miles an hour, several seconds before the collision, some distance back from the point of the transaction, and out of view of the same when making the exclamation.
3. The evidence supported the verdict, and the court did not err in overruling the motion for new trial.
DECIDED FEBRUARY 19, 1942. REHEARING DENIED MARCH 27, 1942. D. T. Wilhite brought an action against the Eveready Cab Company for recovery of $15,000 for personal injuries allegedly inflicted by the company's agent and driver, in that said agent, while transporting a passenger on behalf of the company, stopped and parked the cab about nine o'clock at night at a point on the highway about five miles south of Jefferson, and in the forward lane of traffic, and at about ten or twelve inches, measured from the line of the left wheels, from the center line of the paved highway, and with front and rear lights extinguished. The petitioner alleged that while riding in a car with one Dadisman, he and Dadisman, going in the same direction as the cab was parked, without warning, ran into the cab parked as above indicated, causing a collision and injuries which are unnecessary of detail here, under special assignments of error as made. The allegations of negligence by the agent, though severally stated, were in effect as defined by the Code, §§ 68-302, 68-314. With reference to the fact of agency of the driver of the cab, the plaintiff alleged: "6. The said Arthur E. Lester was a servant, employee and chauffeur of defendant, and at the time of said collision was engaged in its business and acting within the scope of his employment as such, and it was the negligence of said Lester aforesaid as representing the defendant which caused the collision and consequent injuries to petitioner." Upon pleading defensively upon the other issues in the cause and as to *Page 817 the defense of contributory negligence by the driver of the car in which the plaintiff was riding at the time of the collision, the defendant answered as to the agency and negligence of the driver as follows: "6. Defendant admits that Arthur E. Lester was its servant, employee and chauffeur, and was engaged in its business, and acting within the scope of his employment as such, at the time of the collision. The remaining allegations of paragraph 6 of the petition are denied. Said Lester was not negligent. . ." The defendant set up the manner in which the collision occurred as follows: "Defendant's driver had reduced his speed to determine whether one of his tires was slack; had determined without stopping that the tire was not slack; and had immediately speeded up again; and, after driving about fifty yards or more, was proceeding at a speed of about twenty or twenty-five miles per hour when the cab was struck from the rear by the car occupied by the plaintiff. The lights of the cab were burning, and were not and had not been extinguished."
Upon the conclusion of the evidence and before argument, the defendant amended its answer as follows: "Defendant strikes the first sentence of paragraph 6 of its original answer herein [`Defendant admits that Arthur E. Lester was its servant, employee and chauffeur, and was engaged in its business, and acting within the scope of his employment as such, at the time of the collision'], and substitutes therefor the following language: `Defendant admits that said Arthur E. Lester was a servant, employee and chauffeur of defendant. Defendant further admits that, as such servant, employee and chauffeur of defendant, said Arthur E. Lester had undertaken to transport a female passenger for hire from Athens to Gainesville and return; had transported her to Gainesville; and had transported her, on the return trip to Athens, to the point where the collision involved in this case occurred; such transportation being within the scope of said Lester's employment. Defendant denies that said Lester stopped his car, extinguished the lights thereof, and had said car parked, with lights extinguished, at the time of the collision. [This may be properly taken with the foregoing quotation from the answer, unamended, that the collision occurred just after the driver had slowed down to determine whether he had a slack tire on the cab, and had slightly speeded up, when struck from the rear by the car in which plaintiff was riding.] *Page 818 Defendant further says that any such parking of said car [cab], with lights extinguished, as alleged by plaintiff, was not done by said Lester in the prosecution of this defendant's business, or within the scope of said Lester's employment; and that this defendant was not and is not responsible for any such acts by said Lester, and was not and is not liable to plaintiff herein for any injury sustained by plaintiff in consequence of any such acts of said Lester."
From about seventy pages of evidence, in many particulars conflicting, that, on the one hand, the driver of the car in which the plaintiff was riding was under the influence of whisky and driving from fifty to fifty-five to seventy miles an hour, and that the cab was not stopped at all, but was run into from the rear, as defensively pleaded, and that, on the other hand, it was parked as alleged, for about fifteen to twenty minutes before the collision, with lights, front and rear, extinguished, and with the occupants, the driver and the passenger, not in such view as to be observed by a witness passing the parked car, though stopping momentarily to give help if needed, the jury returned a verdict for the plaintiff.
The defendant moved for a new trial on the general grounds and two special grounds. The court overruled the motion, and the defendant excepted. 1. The plaintiff in error assigns error on the following excerpt from the court's charge to the jury. We quote, but include in brackets those parts of the excerpt, omitted by plaintiff in error, which we think necessary to a proper appraisement of the assignment: "The defendant admits that Arthur E. Lester [was its agent, employee and chauffeur and] was engaged in its business and acting within the scope of his employment as such at the time of the collision. In this situation you are instructed that it will not be necessary for you to have proof on that fact as the plaintiff having charged in his petition that Lester [was the servant, employee and chauffeur of the defendant and] was engaged in its business and acting within the scope of his employment at the time of the collision and defendant having admitted this fact, this is to be taken by the court as true without the necessity of evidence on that question." The criticisms are that the court erred *Page 819 in giving the above excerpt in charge to the jury; first, because this charge treated as still in force the admission in defendant's answer that at the time of the collision the driver of the cab was the agent of the defendant and acting within the scope of his employment; second, because the court instructed that such fact, having been admitted, was to be accepted by the jury as true without proof; third, because such charge was not authorized by the answer as amended; fourth, because the question of agency, under the answer as amended, was exclusively a question of fact for the jury's determination; and fifth, because such expression by the court in his charge to the jury on a question of fact was violative of Code, § 81-1104. For a proper appraisement of these criticisms of the above excerpt it is necessary to consider it in its relation to the amendment allowed to the answer as set forth in the statement of facts above. Immediately upon charging the excerpt complained of the court continued: "At that point, having just read to you from the sixth paragraph of the defendant's answer, it is proper that I read to you the amendment filed by the defendant in regard thereto." (See statement of facts above.)
The assignment of error is not meritorious for any of the reasons assigned. The defendant laid its original defense, and tried the case, on the theory that the driver of the cab was admittedly its agent and admittedly acting within the scope of his employment at the time of the collision; that while the driver was proceeding along the highway at a speed slightly greater than that required for him to determine whether the cab was running on a slack tire, the driver of the car in which the plaintiff was riding drove drunkenly and at a rapid rate of speed into the rear of the cab which had its front and rear lights burning, and that such action by the driver of the car was the sole proximate cause of the collision. Upon the conclusion of the evidence and before argument the defendant, still insisting on this theory of the collision, on being presented with evidence that the cab driver parked the cab as alleged, with lights extinguished, then sought to amend to meet this contingency. The legal effect of the amendment was that the original admissions as to agency and scope of employment of the driver, in their relation to the original defense, were preserved, but that should it appear that the driver did park the cab as alleged, which was expressly denied, he was not in so doing the agent of the defendant nor was he *Page 820 acting within the scope of his employment. It matters little that it was declared in the amendment that the first sentence of paragraph 6 of the answer was stricken, when the amendment thereupon not only retained the admissions, but enlarged on them as related to the original defense. Therefore the court properly instructed the jury that there would be no necessity of proofs to establish that which the defendant had admitted.
Looking to the amendment further, it is apparent that the defendant was setting up an express denial that the agent had not parked the cab as alleged and with lights extinguished, and that, if he did so park the cab, he was not in so doing the agent of the defendant and was not acting within the scope of his employment. As to this denial, we think the jury clearly understood from the court's instructions in the charge to them that in such instances proof was necessary to establish the existence of the facts denied. In this connection on the question whether the driver was the agent of the defendant in parking the cab about fifteen minutes before the collision as alleged and proved, the court charged the jury: "I charge you, if a servant steps aside from his master's business, for however short a time, to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may by liable, but the master is not liable. The fact that the servant, in carrying out some personal purpose of his own, uses property intrusted to him by his master for use for the purposes of the employment, does not make the act of the servant, done in furtherance of the servant's personal purpose, an act of the master; and does not render the master liable to one injured in consequence thereof." Therefore, the jury, we think, were moved, not through any alleged erroneous instructions that they might accept the fact of agency and scope of employment as true, because admitted by the defendant, but rather on the failure of proof that the driver had departed from the scope of his employment and acted on a mission personal unto himself, when such "proof" rested on conjecture only. Even though it be conceded that sufficient inferences from the proved facts might show that the agent had departed from the scope of his employment on a personal mission, it conclusively appears that nothing the driver did on such mission had, per se, any causal connection with the collision and the injuries. The offending agency was the parked cab with lights extinguished. It had not been taken fromthe course of *Page 821 the authorized trip. While the bringing of the cab to a stop for a purpose personal to the driver was not, volitionally, pursuant to the defendant's business, the defendant nevertheless remained bound in the absence of removal of the instrumentality literally from the course of the trip when the driver personally was departing from the scope of the employment. The charge of the court next above quoted, was extremely favorable to the plaintiff in error and inapplicable to the facts as proved.
2. This headnote needs no elaboration.
3. The evidence, though conflicting, was sufficient to support the verdict.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.