Travelers Indemnity Co. v. State Farm Mutual Insurance
Travelers Indemnity Co. v. State Farm Mutual Insurance
Opinion of the Court
The appellant contends that it should have been allowed to present testimony of the then sales manager of King Ford, Inc. to the effect that, in turning the company automobile over to Thomas, he had placed certain restrictions on its use. Such testimony would have had a bearing on whether the vehicle was in fact being used by Dudley at the time of his death within the scope of the permission granted. The judge ruled out the proffered testimony as objectionable under Code Ann. § 38-1603 (3): "Where any suit shall be instituted or defended by a corporation, the opposite party shall not be admitted to testify in his own behalf to transactions or communications solely with a deceased or insane officer or agent of a corporation;... nor shall such officer or agent be admitted to testify against an opposite party who is the personal representative of a deceased person, as to transactions or
John King Ford, Inc., however, is the "opposite party” involved in the statute, whose agent is being offered to testify against the widow of the deceased. It is not a party to either damage suit. Its pecuniary interests are not antagonistic to those of any of the other parties to the litigation. Its rights will not be affected by the result of the case. Even if they could be so affected, Travelers Indemnity Company and State Farm Mutual are neither a corporation whose agent is called on for testimony nor the personal representative of
Ennis Dudley, the driver of the vehicle at the time of Thomas’ death, offered testimony as to the purpose and circumstances of the trip on the night in question which was excluded over the objection that it was admissible to show that at the time of the accident Thomas was acting beyond the scope of his employment with John King Ford. Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512, 517 (160 SE2d 844) held: "Although he may have been in the owner’s employment, the issue under the permissive use or omnibus clause is not whether he was acting within the scope of his employment, as it would be if the suit were against the employer under the theory of respondeat superior.” The issue is not employment but permission to use. As stated in Ditmyer, id., p. 519, there cannot be permission to use which is neither within the scope of employment nor the permission granted. Id., p. 519. Such evidence may become relevant on a retrial of the issues, not because scope of employment would be determinative of whether or not there was insurance, but as bearing on the issue of permissive use.
The trial court erred in excluding the evidence dealt with in the first division of this opinion and in directing a verdict in favor of the plaintiff.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.