Bowman v. Fuller
| Decision Date | 12 June 1951 |
| Docket Number | No. 33585,No. 2,33585,2 |
| Citation | 66 S.E.2d 249,84 Ga.App. 421 |
| Parties | BOWMAN v. FULLER |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Since the evidence authorized the trial judge who heard the case without the intervention of a jury to find that by an express written contract the two transportation firms herein involved entered into an agreement covering joint leasing operations under their respective I. C. C. permits, which agreement contemplated the leasing of equipment from third parties and a pro rata division of profits thereunder, the conclusions are authorized by the evidence that the execution of the contract and the operations of the parties under it constituted a joint enterprise, and that the act of one of the parties in leasing the equipment of the plaintiff in the name of the other was within its scope.
2. The evidence here is not sufficient to demand a finding that the plaintiff entered into the lease agreement as a subterfuge for the purpose of engaging as a motor common carrier in interstate commerce.
3. The provision of law that where a bailor sends his own agent with the thing bailed the hirer shall be responsible only for the consequences of his own directions does not apply where the hirer, by express contract, accepts the owner's agent as his employee for the duration of the contract.
Elbert T. Fuller brought suit against Ralph M. Bowman, doing business as the Bowman Transportation Company, in the Civil Court of Fulton County, attaching to the petition a lease agreement between the parties under which the defendant leased from the plaintiff a tractor-trailer combination to be used in the transportation of freight, the plaintiff lessor agreeing to furnish drivers and helpers for the operation of the equipment, which employees 'shall be deemed to be in the employ of the party of the first part [defendant] for the duration of this lease', and to furnish all tires, gas, oil, grease, license tags and plates, upkeep and repairs and to bear the expense thereof. The defendant lessee was to have direct supervision over all drivers and helpers so furnished, with authority to discharge at any time for justifiable cause, to pay the lessor The petition alleged that the defendant had breached the contract by failing to return the trailer and sued for its value plus hire. The lease was signed, 'Bowman Transportation Company, R. L. Moore, Party of the First Part.'
The defendant answered denying the lease was ever signed by any employee of his or any one authorized to enter into the same on his behalf, and that the signature thereon was not the signature of R. L. Moore or of any person authorized to act for the defendant, and alleging that the equipment involved in the purported lease did not operate over the route defendant was lawfully authorized to follow under his Interstate Commerce Commission franchise. A special plea of non est factum was also filed. The plaintiff then amended, alleging that E. L. Moore was the defendant's agent authorized to enter into contracts in his behalf; that the name, 'R. L. Moore' was signed by S. J. Morris Motor Express, Inc., that for a period of months immediately prior to, and on the day the lease was signed, the defendant authorized and directed S. J. Morris Motor Express, Inc. to enter into contracts in his behalf and to sign the defendant's name or that of his authorized agents thereto; that over this period of time S. J. Morris Motor Express, Inc. did sign defendant's name or that of his agent to such contracts, which contracts were uniformly authorized and subsequently ratified by the defendant; that the name 'R. L. Moore' was signed by S. J. Morris Motor Express, Inc. with the knowledge, authority and consent of the defendant, and acting as the defendant's agent within the scope of its authority; that the act of S. J. Morris Express, Inc. in so doing was the act of the defendant, and that, pursuant to the contract, the defendant accepted delivery of the property and thereby ratified the act of its agent, S. J. Morris Motor Express, Inc. in signing the contract in its behalf. The defendant thereafter amended his answer as follows: 'Even had there been a valid contract * * * same would be illegal and contrary to law and actually plaintiff was running his own equipment with his own employees in the handling of interstate commerce when he did not have any right in law to do, and therefore the plaintiff cannot recover upon said purported contract, even if it had been executed by or for defendant, which it was not.'
Although the evidence is in sharp conflict as to some of the issues, when construed in its light most favorable to support the verdict, it authorized the judge to find facts substantially as follows: 'That on May 19, 1949, the defendant, his traffic manager W. A. Hefner, S. J. Morris, and his traffic manager R. J. Hager, entered into an agreement covering joint leasing operations between their respective lines (the companies having been granted I. C. C. permits covering different routes) for the division of profits in stated ratios under the following circumstances: (1) joint line operations, (2) single line operations; (3)'traffic destined to points in Florida moving under joint leases (equipment leased from others than S. J. Morris Motor Express, Inc. or Bowman Transportation Company) new revenue will be divided equally between our respective lines.' That in pursuance of this agreement at least 49 shipments involving 195 freight consignments were made under its terms; that the defendant received revenue pursuant to the contract, divisions of profits being made periodically; that it was understood that all the Bowman shipments had to originate in Rome because of the I. C. C. permit and for that reason R. L. Moore, Bowman's agent in Rome, was the man whose signature must appear on all leases; that Moore's name did appear on the leases but that he actually only signed two of them, the others being signed by Morris, Hager or other agents in the Morris company office; that copies of the leases were then mailed to Bowman in Atalla, Alabama; that lease agreements were so made and executed from May through October during which time there was never any complaint from Bowman; that to facilitate the transaction Bowman Transportation had printed up and furnished to S. J. Morris Motor Express 400 sets of freight bills showing consignments for delivery by Bowman Transportation Co., 195 of which had been used by S. J. Morris Motor Express in making up shipments for carriage under the facilities and over the routes of Bowman Transporation Co.; that on October 26, 1949, Morris called the plaintiff' office by telephone to find out whether he could lease a truck-trailer combination for a one way trip to Miami, Florida; that one of the plaintiff's agents sent the equipment together with its driver, Don Darnell, to Morris' office with authority to sign the lease; that Darnell signed the lease, copy of which was attached to the petition, for the plaintiff, and one of Morris' agents signed the name 'Bowman Transportation Company, R. L. Moore' for the defendant in accordance with the usual practice; that the truck was then loaded with ammunition under a U. S. Government freight waybill which contained the following: 'Name of Initial Transportation Company, S. J. Morris Motor Express, Inc. and Bowman Transportation Co.'; that the driver was supposed to deliver the cargo at Opa Locka, Florida and then purchase a load of bananas for the plaintiff's own use and return. The plaintiff had no I. C. C. permit, it being his regular practice to lease his trucks on one way trips to Florida and to return with produce for his own use. Although the lease was made out for a round trip, it was the intention of both Fuller and Morris that it be for a one way trip only. The driver had tire trouble south of Valdosta, and eventually left Lake Park with a flat on the ground; then another tire went flat and the driver pulled into a service station. The tires were smoking. The driver, after squirting fire extinguisher on the tires, went to get repairs, and while he was gone the entire trailer and contents caught fire and burned to the ground.
The defendant's traffic manager, Hefner, testified that he regularly received copies of leases from S. J. Morris Transportation Company a day or so after they were mailed out; that they were all signed, 'R. L. Moore' and, not being a handwriting expert he assumed Moore had signed them at Rome, the legal point of origin; that he did not notice that one of the leases simply bore a typewritten signature of R. L. Moore; that he did leave the Bowman Transportation Company freight bills with Morris, and did pick up the...
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