Whitaker v. Jones, McDougald, Smith, Pew Co. , 69 Ga. App. 711 ( 1943 )

One of the grounds of the motion for rehearing stated that "The person who injured Whitaker [plaintiff] was not a third person unknown to the defendant, as in the Norris case [58 Ga. App. 313, supra], but on the other hand was an employee and agent of the defendant in error, and who they permitted to come upon their premises, and who had been in the employ of the defendant and had not yet left the premises."

The original petition, in paragraph 10, did in effect state that the person who injured the plaintiff was an employee or agent of the defendant. However, the plaintiff, by amendment, struck "All the paragraphs therein, except paragraphs 1 and 2 and the prayer of said petition, and added the following paragraphs, to be numbered in said petition as numbered below." Nowhere in said petition as amended was there an allegation that the person who injured the plaintiff was the agent or employee of the defendant and acting within the scope of his authority. This and all other matters in the motion having been considered, it is

Overruled. Broyles, C. J., and Gardner, J., concur.