Buffalo Holding Co. v. Shores, 46093

• Decision Date: 21 October 1971
• Docket Number: 3,No. 46093,Nos. 1,2,46093,s. 1
• Citation: 124 Ga.App. 868,186 S.E.2d 339
• Parties: BUFFALO HOLDING COMPANY, Inc., et al. v. Martha E. SHORES
• Court: Georgia Court of Appeals

Page 339

186 S.E.2d 339

124 Ga.App. 868

BUFFALO HOLDING COMPANY, Inc., et al. v. Martha E. SHORES.

No. 46093.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 21, 1971.

Rehearing Denied Nov. 16, 1971.

Certiorari Granted Jan. 6, 1972.

Michael J. Reily, Atlanta, for appellants.

McClain, Mellen, Bowling & Hickman, Arthur Gregory, Atlanta, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

1. 'The owner of a vehicle is not liable 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.' Brown v. Sheffield, 121 Ga.App. 383(1), 173 S.E.2d 891, and see Fambro v. Sparks, 86 Ga.App. 726, 72 S.E.2d 473; Marketing Sales Ind. of Ga., Inc. v. Roberts, 118 Ga.App. 718, 165 S.E.2d 319; Price v. Star Service & Petroleum Corp., 119 Ga.App. 171, 166 S.E.2d 593; Early v. Ramey, 119 Ga.App. 621, 168 S.E.2d 629; Harper v. Brown, 122 Ga.App. 316, 176 S.E.2d 621. On the corporate defendant's motion for summary judgment it appears that Freeman was a taxicab driver; that he worked for Buffalo Cab Co., customarily driving between Atlanta and the Atlanta Airport at times between 8 or 9 a.m. and 4 p.m.; that he used the automobile here involved for business and personal use and was in the process of purchasing it from his employers; that on the day in question he made one trip to the airport in the morning; that he quit work at about 11 a.m., picked up his wife at a grocery store, picked up a friend at her home, drove to his apartment, parked the car, ate lunch at home, and at about 1:20 p.m. was watching a baseball game when he heard a noise and looked out to discover that his car had rolled down an incline and collided with a parked vehicle in which plaintiff was sitting.

Freeman was not in the course of his employment as a taxicab operator at the time of the alleged injuries. This is not a situation within the ambit of cases like Ayers v. Barney A. Smith Motors, Inc., 112 Ga.App. 581, 145 S.E.2d 753, the specific fact situation there including testimony that the salesman driver, entrusted with a demonstrator automobile for purposes of sale, was while en route to visit his parents also alert to any opportunity of soliciting prospects which the trip might have presented. Here the defendant had ceased driving the vehicle as a taxi, had performed personal errands and had then left the car parked at his home while engaging in other personal recreation. The trial court should have sustained the motions for summary judgment of Buffalo Holding Co., Inc. and Buffalo Cab Co., Inc.

2. The record is undisputed that Freeman parked the car and left it in 'park' gear; there is a question of fact as to whether the emergency brake was on. It is undisputed that it was open, the windows were down, and a young child was sitting behind the wheel at the time it rolled down the incline. The only possible choice of explanations lies in the inference (a) that Freeman negligently failed to secure the car, which eventually rolled downhill of its own accord, or (b) the child who was seen in the car tinkered with the gears or brake or both and thus allowed the automobile to roll down the incline. Under the first hypothesis a jury question on Freeman's negligence as to the manner in which he secured the vehicle would be presented under Kroger Co. v. Perpall, 105 Ga.App. 682(4), 125 S.E.2d 511. Under the second liability might also exist, depending upon the care used in parking the vehicle and whether or not there was a duty to anticipate that young children might be playing around it in such manner as to release the braking mechanisms and that a person or object might be stationed behind the car in such manner as to be injured if they did so. In this regard see Johnson v. John Deere Plow Co., 214 Ga. 645, 106 S.E.2d 901. These are matters of proof on the trial of the case, and the court did not err in denying the motion for summary judgment as to Freeman.

3. In his motion for rehearing, counsel for appellee complains that we did not expressly pass on the motion to dismiss the appeal filed in this court. The motion was without merit for the following reasons: Code Ann. § 6-808 states in part: 'Where no transcript of evidence and proceedings is to be sent up, the clerk shall prepare and transmit the record within 20 days after the date of filing of the notice of appeal. If for any reason the clerk is unable to transmit the record and transcript within the time hereinbefore required . . . he shall state in his certificate the cause of the delay, and the appeal shall not be dismissed.' Code Ann. § 6-809 states in part: 'No appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law . . . but . . . the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that such delay was inexcusable and was caused by the failure of a party to pay costs.' Code § 6-809 also calls for notice and hearing by the trial court. However, that the appellate courts also had jurisdiction to dismiss appeals for late payment of costs was first established under the new Appellate Procedure Act on the basis of Constitutional authority and court rules, in George v. American Credit Control, Inc., 222 Ga. 512, 150 S.E.2d 683 where it was held that an additional 78 day delay in paying costs following a 90 day delay on the...