Brown v. Sheffield

• Decision Date: 26 February 1970
• Docket Number: No. 45040,No. 2,45040,2
• Citation: 121 Ga.App. 383,173 S.E.2d 891
• Parties: Harold BROWN v. N. M. SHEFFIELD
• Court: Georgia Court of Appeals

Page 891

173 S.E.2d 891

121 Ga.App. 383

Harold BROWN v. N. M. SHEFFIELD.

No. 45040.

Court of Appeals of Georgia, Division No. 2.

Feb. 26, 1970.

Rehearing Denied March 13, 1970.

Certiorari Denied May 8, 1970.

Syllabus by the Court

2. (a) Unless it appears that the owner under the doctrine of respondeat superior for injuries inflicted by negligence of the operator while it was being operated on a mission purely personal to the operator.

2. (a) Unless it appears that the owner had actual knowledge of the operator's incompetency as a driver there is no liability on the owner's part on the theory of negligent entrustment.

(b) When all of the evidence is considered, reversible error in denial of summary judgment as to Count 2 does not appear.

(c) Lack of a driver's license does not indicate knowledge of incompetency on the part of one to operate a farm tractor, particularly when it appears that his failure to obtain a license was occasioned by his lack of sufficient education to enable him to read and write, or when the tractor was temporarily on the highway and not being used to transport farm produce to market.

3. (a) When one drives the vehicle of another contrary to the owner's express instructions not to do so, and without the knowledge or consent of the owner, there is no entrustment of the vehicle to the driver, and the owner can not be held on the theory of negligent entrustment.

(b) In summary judgment proceedings the movant has the burden of showing the absence of any substantial factual issue.

The petition, in two counts, seeks damages for injuries sustained when a farm tractor owned by Harold Brown driven on the highway by Richard Tuggle collided at an intersection with an automobile owned by the plaintiff, N. M. Sheffield, but operated by his wife, he being a passenger. It is alleged that plaintiff's vehicle had the right of way and that the tractor entered the intersection in the face of a stop sign without having stopped and that the negligence of Tuggle brought about the collision and the ensuing damage.

In Court 1 Tuggle is alleged to have been the servant of Brown and that he was acting within the course of his employment when the collision occurred. In Count 2 it is alleged that Tuggle was an incompetent driver, a matter of which Brown had or should have had knowledge, and that he negligently entrusted the tractor to him.

Defendant moved for summary judgment, supporting the motion with his deposition and those of the plaintiff and the driver, Tuggle, and his affidavit. Defendant countered with an affidavit of Mrs. Patsy Campbell, which she later disavowed, testifying orally at the hearing on the motion.

Summary judgment was denied, and defendant appeals. The court certified the judgment as one which should be reviewed.

Moore & Moore, Whelchel & Whelchel, Hoyt H. Whelchel, Jr., Moultrie, for appellant.

James M. Collier, Dawson, for appellee.

EBERHARDT, Judge.

1. The evidence as to the relationship between Tuggle, the driver of the tractor, and Brown, the owner, was that Tuggle was allowed to live in a house on Brown's farm, rent free, and that when Brown was in need of his services as a laborer he employed him on a day to day basis, paying him by the day when he worked. A part of the labor performed when he worked involved the operation of a farm tractor, and he had operated it on many occasions. Brown had allowed him to use the tractor in going to a store for the purchase of groceries for himself and his mother. However, he asserted that on Friday prior to the occasion of the collision here involved he had instructed Tuggle not to drive the tractor to the store or to use it otherwise without prior permission or direction because the tractor was becoming somewhat worn and Brown felt that the added driving or use was harmful to it.

The collision occurred on a Sunday and on that day he was doing no work on any kind for Brown. He took the tractor and went to the store 'to get some Anacins for mama,' as he testified. Brown testified by affidavit that he 'had not given Richard Tuggle permission to use my tractor, nor was he on any business of mine or at the time in my employment,' and that his use of the tractor on the occasion of the collision 'was the only time to my knowledge that he ever disobeyed my instructions' not to use it without prior permission. There was no other evidence of employment.

As to Count 1, denial of the motion for summary judgment was error. Price v. Star Service & Petroleum Corp., 119 Ga.App. 171, 166 S.E.2d 593, and citations; Fielder v. Davison, 139 Ga. 509(4), 77 S.E. 618; LaFitte v. Schunamann, 19 Ga.App. 799, 92 S.E. 295; Eason v. Joy Floral Co., 34 Ga.App. 501, 130 S.E. 352; Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga.App. 117(2), 185 S.E. 147; Royal Undertaking Co. v. Duffin, 57 Ga.App. 760, 196 S.E. 208; Nicholas v. Callaway, 72 Ga.App. 41, 32 S.E.2d 836; Johnson v. Webb-Crawford Co., Inc., 89 Ga.App. 524, 80 S.E.2d 63; Powell v. Mauldin, 102 Ga.App. 606, 117 S.E.2d 234; Brennan v. National NuGrape Co., 106 Ga.App. 709, 128 S.E.2d 81; Brawner v. Martin & Jones Produce Co., 116 Ga.App. 324, 157 S.E.2d 514; Georgia Power Co. v. Kendricks, 117 Ga.App. 129, 159 S.E.2d 303; Marketing Sales Industries of Georgia, Inc. v. Roberts, 118 Ga.App. 718, 165 S.E.2d 319. And see Jones v. Dixie Ohio Express, Inc., 116 Ga.App. 155, 156, 156 S.E.2d 388.

2. (a) In Count 2 the theory of the action is that of negligent entrustment, as to which see generally, Willis v. Hill, 116 Ga.App. 848, 159 S.E.2d 145, and citations (reversed on other grounds in 224 Ga. 263, 161 S.E.2d 281); Young v. Kickliter, 213 Ga. 42, 96 S.E.2d 605; Chattanooga Publishing Co. v. Fulton, 215 Ga. 880, 114 S.E.2d 138; NuGrape Bottling Co. v. Knott, 47 Ga.App. 539, 171 S.E. 151; Ficklen v. Heichelheim, 49 Ga.App. 777(6), 176 S.E. 540; Crisp v. Wright, 56 Ga.App. 338, 192 S.E. 390; Graham v. Cleveland, 58 Ga.App. 810(2), 200 S.E. 184; Holt v. Eastern Motor Company, 65 Ga.App. 502, 15 S.E.2d 895; Burks v. Green, 85 Ga.App. 327, 69 S.E.2d 686; Gay v. Healan, 88 Ga.App. 533(4), 77 S.E.2d 47; Windsor v. Chanticleer & Co., 89 Ga.App. 116, 78 S.E.2d 871; Caskey v. Underwood, 89 Ga.App. 418, 79 S.E.2d 558; Medlock v. Barfield, 90 Ga.App. 759, 84 S.E.2d 113; Garver v. Smith, 90 Ga.App. 892, 896, 84 S.E.2d 693; Healan v. Powell, 91 Ga.App. 787, 87 S.E.2d 332; Mason v. Powell, 92 Ga.App. 496, 88 S.E.2d 734; Jones v. Dixie Drive It Yourself System, 97 Ga.App. 669, 104 S.E.2d 497; Hines v. Bell, 104 Ga.App. 76(4), 120 S.E.2d 892; Marques v. Ross, 105 Ga.App. 133, 138, 123 S.E.2d 412; McKinney v. Burke, 108 Ga.App. 501, 133 S.E.2d 383; Roebuck v. Payne, 109 Ga.App. 525(2), 136 S.E.2d 399; Lee v. Swann, 111 Ga.App. 88, 140 S.E.2d 562; Porch v. Wright, 116 Ga.App. 138, 156 S.E.2d 532; Saunders v. Vikers, 116 Ga.App. 733(5, 6, 7), 158 S.E.2d 324; Ditmyer v. American Liberty Ins. Co., 117 Ga.App. 512, 520, 160 S.E.2d 844; Jones v. Cloud, 119 Ga.App. 697, 168 S.E.2d 598; and see R. J. Reynolds Tobacco Co. v. Newby, 9 Cir., 145 F.2d 768.

Defendant testified that Tuggle had been driving tractors for some time and had driven this tractor on numerous occasions in doing plowing, harrowing, etc., on the farm, and had driven it to town on one occasion to get repairs made, had occasionally driven it to the store for purchasing groceries, and that he had observed that Tuggle was a capable and competent driver. ¹ He had never known him to have an accident or a collision while driving a tractor before this occasion. While he did not regard Tuggle as being a 'bright' person, he did regard him as being competent in the matter of tractor driving, farm work and the like. Tuggle's testimony was to the same general effect.

As was held in Young v. Kickliter, 213 Ga. 42, 96 S.E.2d 605, supra; Chattanooga Publishing Co. v. Fulton, 215 Ga. 880(3), 114 S.E.2d 138, supra; Mason v. Powell, 92 Ga.App. 496, 88 S.E.2d 734, supra; Hines v. Bell, 104 Ga.App. 76, 120 S.E.2d 892, supra; Marques v. Ross, 105 Ga.App. 133, 139, 123 S.E.2d 412, supra; Roebuck v. Payne, 109 Ga.App. 525(2), 136 S.E.2d 399, supra; Lee v. Swann, 111 Ga.App. 88, 140 S.E.2d 562, supra, and others, knowledge of the driver's incompetency is an essential element of the rule which holds an owner liable for furnishing his motor vehicle to an incompetent driver, and such knowledge must be actual rather than constructive.

(b) If there is any evidence in this record that could be said to indicate that there may be a jury question as to whether Brown had any knowledge of Tuggle's incompetency as a tractor driver, it must be found in the testimony of Mrs. Patsy Campbell.

Mrs. Campbell had worked for Brown as a secretary during a portion of the time when Tuggle lived on the place and worked as a day laborer when needed.

Defendant's attorney obtained from Mrs. Campbell a statement which she typed out herself, but did not sign, asserting, inter alia, that 'For a number of months prior to August, 1966, I knew Richard Tuggle and had occasion to observe his conduct and the handling ov various tractors in this community. At to time did I observe Tuggle handling or driving tractors in a dangerous or reckless manner. At no time did I warn or caution Harold Brown that Richard Tuggle's use of tractors was likely to result in injury or damage because of Tuggle's reckless or negligent misuse of said tractors. In fact, my only concern was that Mr. Brown's property be protected from excessive use by Tuggle, since I realized that Tuggle's use of the tractor for personal purpose would wear out the tractor. Also, there would be added expense to Mr. Brown of gas and oil, for which Tuggle was not likely to reimburse Mr. Brown.'

Afterward, plaintiff's attorney prepared an affidavit to be signed by Mrs. Campbell for use in opposing defendant's motion for summary judgment in which it was stated that when she worked for Mr. Brown he stated to her on several occasions that he knew that Tuggle...