Baker v. H.E. Lowe Electric Co.
| Decision Date | 27 July 1933 |
| Docket Number | 22701. |
| Citation | 170 S.E. 337,47 Ga.App. 259 |
| Parties | BAKER v. H. E. LOWE ELECTRIC CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Employer is liable for injury from employee's negligent operation of automobile under employer's direction and within scope of employee's employment.
Declarations or admissions of ordinary agent or servant do not bind principal, unless part of res gestæ or transaction in controversy, and, being mere hearsay, have no probative value (Civ. Code 1910, § 5779).
President of corporation is presumed to have power to act for corporation in matters within scope of its ordinary business without any special delegation of authority (Civ. Code 1910 § 2225).
Admissions of president alter ego of corporation are ordinarily admissible, where made in due course of president's official duties with reference to particular transaction in controversy (Civ. Code 1910, §§ 2225, 5779).
Admission of corporation's president, on day following accident that driver of automobile causing injury was employee of corporation engaged in corporation's business held admissible as expression of corporation's alter ego (Civ. Code 1910, §§ 2225, 5779).
1. An employer is liable for injury from the negligent operation of an automobile by his employee, where the servant is at the time using the automobile at the master's direction and within the score of his employment, Postal Telegraph-Cable Co. v. Tucker, 33 Ga.App. 525, 126 S.E. 860; Massachusetts Cotton Mills v. Byrd, 38 Ga.App. 241, 143 S.E. 610; 42 C.J. 1128, 1122, 1125.
2. "The admissions of an agent or attorney in fact, during the existence and in pursuance of his power, are evidence against the principal." Civ. Code 1910,§ 5779. The relevancy of such testimony cannot be based upon any idea that such agent or servant, by virtue of his relation to his principal, speaks in the place of the principal as his alter ego; but rests on the theory that what he does and says dum ferret opus--that is, with reference to the act in controversy and while engaged in its performance--is a part of the res gestæ of the transaction and constitutes part of, and throws light upon, what the principal himself actually does.
3. The declarations or admissions of an ordinary agent or servant, unless part of the res gestæ of the transaction in controversy, do not bind the principal, and, being mere hearsay, have no probative value. Georgia Ry. & Elec. Co. v. Harris, 1 Ga.App. 714 (2), 718, 57 S.E. 1076. This is true, for the reason that the principal cannot be bound by the subsequent declarations of such an agent merely by virtue of his relation to his principal, and because what he thus says cannot be taken to constitute a part of, and thus to throw light upon, the previous transaction in controversy as performed by the principal.
4. "Every corporation acts through its officers, and is responsible for the acts of such officers in the sphere of their appropriate duties; and no corporation shall be relieved of its liability to third persons for the acts of its officers by reason of any by-laws or other limitation upon the power of the officer, not known to such third person." Civ. Code 1910, § 2225. See, also, Vardeman v. Penn Mut. Life Ins. Co., 125 Ga. 117, 119, 54 S.E. 66, 5 Ann.Cas. 221.
5. Under the rule adopted in this state, the president of a corporation is presumed to be its alter ego; that is to say, while not ipso facto clothed with autocratic powers as to the making of contracts, he is nevertheless its chief executive officer and agent, and, without any special delegation of authority, is presumed to have power to act for it in matters within the scope of its ordinary business. Third Nat. Bank v. McCullough, 108 Ga. 249, 33 S.E. 848; Mosely v. First Nat. Bank, 160 Ga. 394, 397, 128 S.E. 192; Snead v. State, 165 Ga. 44 (3), 51, 139 S.E. 812; 3 Fletcher's Cyc. of Corporations, p. 3187, § 2011 et seq.; 2 Thompson on Corporations (2d Ed.) p. 717, § 1629.
6. The admissions of a president as the official mouthpiece and alter ego of a corporation, as distinguished from an ordinary servant or agent, made even with reference to a previous transaction, are ordinarily admissible in evidence, provided they are made in the due course of his official duties with reference to the particular transaction in controversy.
7. The evidence admitted for the plaintiff, together with that erroneously excluded and dealt with in the sixth headnote and the following opinion, showing a prima facie case, and the question of negligence being for the jury, it was error to grant a nonsuit.
Error from City Court of Macon; C. H. Hall, Judge.
Suit by Mrs. G. C. Baker against the H. E. Lowe Electric Company. To review a judgment of nonsuit, plaintiff brings error.
Reversed.
Statement of facts by Jenkins, Presiding Judge:
A corporation was sued for damages on account of injuries sustained in an automobile collision which occurred about three miles south of Forsyth, Ga., on account of the alleged negligence of its employee and agent while "on the business of defendant, being on the way from Macon to Barnesville, Georgia, to do certain work for defendant at Barnesville." Plaintiff undertook to introduce the testimony of her husband "that he conferred with Mr. H. E. Lowe, the president of the H. E. Lowe Electric Company (defendant), in the place of business of the company at Macon the day after the accident happened; that he notified Mr. Lowe that he and his wife, the plaintiff in the case, had been damaged by the acts of agents of the company going to Barnesville in an automobile on the business of the company; that Mr. Lowe said that Mr. Atkins and Mr. Lindsey, the men in the car, were the employees of the H. E. Lowe Electric Company; that the automobile was owned by Mr. Atkins and not by the company; that the company paid and was paying the transportation of the trip; that these men had been to the store the morning of the accident, or possibly the Saturday afternoon before, and had got from the store the materials which they had in the car and which they were carrying to Barnesville to use on the job for the H. E. Lowe Electric Company; that Mr. Lowe said that Atkins and Lindsey, the men involved, were on the payroll of the company; and that while the witness was talking to Mr. Lowe, Mr. Lowe attempted to reach Mr. Atkins by telephone to confer with him about the circumstances of the accident, but was unable to reach him." The husband of plaintiff had previously testified that immediately after the collision one of the two alleged employees of the company stated to the witness that the two men were on their way to Barnesville to do some electrical work for the company with electrical equipment which they had in the back of their car, and showed these materials to the witness. There was evidence from which the jury were authorized to find that the collision resulted from the negligence of the alleged employee of defendant. The court excluded the evidence as to the alleged admissions of the defendant's president as hearsay and of no probative value, and granted a nonsuit on the defendant's motion. Plaintiff excepts to these rulings.
Williams & Freeman, of Forsyth, and Park & Strozier, of Macon, for plaintiff in error.
Jones, Johnston, Russell & Sparks, of Macon, for defendant in error.
The conclusion stated in the sixth headnote has not been reached without some degree of difficulty, and it therefore seems proper to enter upon some discussion of this ruling. The decisions bearing more directly upon the question, as far as we have been able to ascertain, are as follows: Imboden v. Etowah Co., 70 Ga. 86 (11); Dobbins v. Pyrolusite Manganese Co., 75 Ga. 450, 452 (3); Krogg v. Atlanta Railroad, 77 Ga. 202 (1-a), 4 Am.St.Rep. 77; Chattanooga R. Co. v. Liddell, 85 Ga. 482 (2), 11 S.E. 853, 21 Am.St.Rep. 169; Louisville R. Co. v. Tift. 100 Ga. 86 (3), 27 S.E. 765; Childs v. Ponder, 117 Ga. 553 (2), 43 S.E. 986; Sizer & Co. v. Melton, 129 Ga. 143, 148, 58 S.E. 1055; Happ Bros. Co. v. Hunter Mfg. Co., 145 Ga. 836 (4), 90 S.E. 61.
The testimony excluded in this case was either admissible as part of the res gestæ, admissible as an admission by the adverse party contrary to its interest, or inadmissible, as being mere hearsay. Unless it be true that corporations enjoy a special immunity that natural persons do not enjoy whereby they are protected from the use of admissions made by them against their own interest, it would seem that any admission made by the alter ego of the corporation, as distinct from an ordinary servant or agent (see Wright v. Ga. R. Co., 34 Ga. 330 [3], 337; Marsh v. S.C. R. Co., 56 Ga 275 [1, 2, 4]; Vardeman v. Penn Life Ins. Co., supra, 125 Ga. 117, 119, 54 S.E. 66, 5 Ann.Cas. 221), made in the due course of his official duties with reference to the...
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