Black v. Montgomery Trucking Co., Inc., 47823
Decision Date | 11 April 1973 |
Docket Number | No. 47823,No. 2,47823,2 |
Citation | 129 Ga.App. 36,198 S.E.2d 378 |
Parties | Lawrence J. BLACK v. MONTGOMERY TRUCKING COMPANY, INC |
Court | Georgia Court of Appeals |
Mose S. Hayes, Atlanta, Ronald L. Davis, Cartersville, for appellant.
Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, Stuart E. Eizenstat, Atlanta, for appellee.
Syllabus Opinion by the Court
The plaintiff appeals from the grant of summary judgment to the defendant carrier in a borrowed servant case. The plaintiff was injured when his car was struck in the rear by a Mack truck owned by one Zschiedrich, a Florida resident, and driven by Wilson. The true identity of the defendant is confusing. The plaintiff alleges that the truck was at the time being operated under the direction and control of 'Montgomery Trucking Co., Inc.' which is doing business and has a local agent for service in this state. The defendant designated itself as 'Montgomery Trucking Co. of Ga., Inc. sued as Montgomery Trucking Co., Inc.' However, it based its right to summary judgment on an equipment lease contract between Zschiedrich and 'Montgomery Brothers Trucking Co., of Live Oak, Florida.' We shall refer to these entities as Montgomery Trucking.
The lease shows it to be a common carrier with licenses from the Interstate Commerce Commission, Georgia Public Service Commission and Florida Public Utilities Commission, and it is referred to throughout as the Carrier. Zschiedrich is referred to generally as the Contractor. The lease contract, which had been in effect some 20 months prior to the collision, is written so as to make clear that the driver furnished to Montgomery Trucking is the employee of the Contractor, who is to pay his salary and workman's compensation. (An affidavit by a Montgomery employee states that Zschiedrich also took care of withholding and social security; that Montgomery actually paid the driver but was reimbursed by the Contracto). Zschiedrich also paid license fees, union dues, fuel, repairs, equipment insurance and damages to the carrier caused by the driver, etc. He further covenanted to carry insurance to save Montgomery harmless from 'any loss or damage to any person or property by reason of any accident during the term of this lease'; that the equipment would remain under his complete direction and control; that his driver would comply with ICC regulations and the operating policy of Montgomery; and that in default Montgomery might request driver replacement or refuse to load the truck. Payments were made on the basis of loads hauled. At the time of the collision the truck and driver were engaged in fulfilling a contract of Montgomery's to haul dirt for the construction of an interstate highway in Georgia.
1. The construction of evidence on motion for summary judgment is against the movant and the judgment should not be granted if controverted issues of fact remain in the case. Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 181 S.E.2d 866; Werbin & Tenenbaum, Inc. v. Heard, 121 Ga.App. 147(1), 173 S.E.2d 114.
2. The first area of confusion under the facts so far adduced in this case is the identity of the defendant and its relation to the entity which executed the lease of the truck and driver. The lease on its face demands a conclusion that as between the parties to the contract, the driver is the employee of the contractor-owner, which agreed to 'carry insurance . . . so as to save the carrier harmless' etc. The borrowed servant cases cited by the appellee would be irrelevant in view of the clear terms of the written contract, if the contract actually controls. (See Division 3).
However, when one carrying on an activity which can only lawfully be carried on by a franchise, license or permit and which involves unreasonable risk of harm to others, the general rule is to make the carrier responsible along with the contractor for injury resulting from the negligence of the driver of a leased vehicle where the act is committed in the course of the work being done under the permit. See Restatement, Torts, Negligence § 428; Gallagher's Estate v. Battle, 209 Md. 592, 122 A.2d 93(1)(11); Kaplan Trucking Co. v. Lavine, 253 F.2d 254(3, 4), 6 Cir. and cit. The facts developed on the trial of this case may well authorize joint liability of the carrier and contractor under considerations of general law and public policy.
3. If, however, it develops that the defendant is an entity other than the carrier designated in the lease,...
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