Buchanan v. Canada Dry Corp.
| Decision Date | 22 April 1976 |
| Docket Number | No. 3,No. 52023,52023,3 |
| Citation | 138 Ga.App. 588,226 S.E.2d 613 |
| Parties | Sara BUCHANAN et al. v. CANADA DRY CORPORATION et al |
| Court | Georgia Court of Appeals |
Strother & Weiner, J. Matthew Dwyer, Jr., Atlanta, Fredericks, Jones & Wilbur, Carl Fredericks, Marietta, for appellants.
Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., N. Forrest Montet, Atlanta, for appellees.
It is not contested that the driver of the truck is the servant of Southeast-Atlantic so that that entity will be liable for torts committed by him within the scope of his employment. Code § 105-108. What is contested is whether the relationship between Southeast-Atlantic and Canada Dry is such that the torts of the driver will subject the latter to liability. This involves a determination of whether Southeast-Atlantic was Canada Dry's 'servant' under Code, § 105-108 or an 'independent contractor' under Code § 105-501.
The appeal is from a summary judgment, holding as a matter of law Canada Dry may not be held liable for the torts of Southeast-Atlantic's servant. 'The summary judgment is a vital provision to accomplish its worthy and obvious objective, to avoid frivolous delays in judgment, but it carefully preserved the province of a jury to decide issues of fact.' Ginn v. Morgan, 225 Ga. 192, 194, 167 S.E.2d 393, 395. On motion for summary judgment, the movant has the burden of showing the absence of any genuine issue of material fact, and the opposing party is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga.App. 1, 4, 126 S.E.2d 442. The movant Colonial Stores, Inc. v. Turner, 117 Ga.App. 331, 333, 160 S.E.2d 672, 674.
Has Canada Dry carried this burden of showing as a matter of law it is not liable for the torts of Southeast-Atlantic's servant? This means that Canada Dry must prove that Southeast Atlantic was an 'independent contractor.' The test whether Southeast-Atlantic is the 'servant' or 'independent contractor' of Canada Dry is whether Canada Dry had the right to direct the time, manner, methods and means of execution of the work as distinguished from the right to insist upon production of results, or whether Southeast-Atlantic was free from any control as to the time, manner, and method of performance. Weiss v. Kling, 96 Ga.App. 618, 619, 101 S.E.2d 178. If, on motion for summary judgment, the evidence authorizes an inference that Southeast-Atlantic was subject to Canada Dry's control, the case must go to the jury. Brown v. Smith & Kelly, 86 Ga. 274, 277, 12 S.E. 411. If the evidence authorizes an inference that Southeast-Atlantic was the 'mere alter ego' of Canada Dry, the case must go to the jury. Wood v. Brunswick Pulp & Paper Co., 119 Ga.App. 880, 882, 169 S.E.2d 403.
Were the only evidence on the motion for summary judgment on the issue of 'control' the contract between Southeast-Atlantic and Canada Dry, we would be compelled to affirm. "In determining whether the relationship of the parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract.' Hotel Storage, Inc. v. Fesler, 120 Ga.App. 672, 674, 172 S.E.2d 174, 176, 41 A.L.R.3d 1049.' Jordan v. Townsend, 128 Ga.App. 583, 584, 197 S.E.2d 482. The need for controls over the use of a trade name, in a franchise...
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...65, 30 L.Ed.2d 57 (1971); Singleton v. International Dairy Queen, Inc., 332 A.2d 160, 163-64 (Del.1975); Buchanan v. Canada Dry Corp., 138 Ga.App. 588, 592, 226 S.E.2d 613, 616 (1976). Each of these jurisdictions, however, has required plaintiffs to demonstrate that they reasonably relied o......
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Stewart v. Midani, Civ. A. No. C80-161R
...Court listed numerous decisions under each of the eight factors. That will not be repeated here. 5 But see, Buchanan v. Canada Dry Corp., 138 Ga.App. 588, 226 S.E.2d 613 (1976) where the court avoided the reliance requirement in an auto accident case by raising the issue of "alter ego," an ......
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Bank v. Rebold
...impose liability on Avis. With respect to the alter ego doctrine, plaintiff places great emphasis on the case of Buchanan v. Canada Dry Corp., 138 Ga.App. 588, 226 S.E.2d 613. In Buchanan, the plaintiff's decedent was killed when his car was struck by a truck bearing the name South east-Atl......