Carter v. Bishop

• Decision Date: 10 June 1953
• Docket Number: No. 18186,18186
• Citation: 209 Ga. 919,76 S.E.2d 784
• Parties: CARTER et al. v. BISHOP.
• Court: Georgia Supreme Court

Page 784

76 S.E.2d 784

209 Ga. 919

CARTER et al. v. BISHOP.

No. 18186.

Supreme Court of Georgia.

June 10, 1953.

Rehearing Denied July 15, 1953.

Syllabus by the Court.

1. The Court of Appeals erred in holding that the act of 1939, Ga.L.1939, pp. 295-303, did not repeal or supersede section 24 of the act of 1931, Ga.L.1931, pp. 199-213, Code, § 68-627, so as to deprive the Public Service Commission of its power to promulgate rules and regulations as to number and type of reflectors to be used on vehicles of motor common carriers.

2. Where one who is employed to drive a motor vehicle, without the consent of and against specific instructions of the master, engages a substitute driver, the master is not liable for the negligence of the substitute driver unless the act of the servant employing the substitute driver be ratified by the master.

Pittman, Hodge & Kinney and R. Carter Pittman, Dalton, for plaintiffs in error.

Mitchell & Mitchell, Dalton, for defendant in error.

ALMAND, Justice.

Mrs. Delories Bishop, by next friend, in an action against Carter Contracting Company, a motor common carrier, on account of the death of her husband by reason of negligence, statutory and simple, of the defendant, recovered a verdict. The defendant's motion for a new trial as amended was overruled, and the Court of Appeals affirmed the judgment denying a new trial. We granted the defendant's application for certiorari to the Court of Appeals. A full statement of the facts and questions at issue, and the opinion of the Court of Appeals, will be found in 87 Ga.App. 554, 74 S.E.2d 562. We will refer to the parties in the positions which they occupied in the trial court.

1. The plaintiff in her petition charged that the defendant was guilty of negligence which contributed proximately to the death of her husband, 'in that the signal and warning lights on the top and side of the tractor and trailer were not lighted and burning as required by law.' Over objection of the defendant, the trial judge admitted in evidence certain rules of the Georgia Public Service Commission respecting the dimensions of motor vehicles and tractors and trailers, and reflectors and lights on the same as required of motor common carriers. The judge gave the rules of the Public Service Commission in his charge to the jury, and informed them that a violation of any of these rules would constitute negligence per se. The defendant assigned error in its motion for a new trial on these instructions. One of the objections to the instructions given as to these rules was that section 24 of the act of 1931, Ga.L.1931, pp. 199-213, Code, § 68-627, which purported to give the Public Service Commission power to promulgate rules and regulations as to lights and reflectors on vehicles used by motor common carriers, has been repealed by the act of 1939, Ga.L.1939, pp. 295-303, which fixed a statutory rule as to lights required on all motor vehicles, and placed in the Department of Public Safety the sole power to make rules as to reflectors on all motor vehicles. The Court of Appeals held that the act of 1939, vesting in the Department of Public Safety authority to determine and specify the type of reflectors to be placed on all vehicles using the highways of this State, did not repeal or supersede section 24 of the act of 1931, so as to deprive the Public Service Commission of its power to promulgate rules and regulations as to number and type of reflectors to be used on vehicles of motor common carriers, and that consequently it was not error to admit in evidence rules of the Public Service Commission in regard thereto, or to charge that a violation of any of these rules would constitute negligence per se.

The act of 1931 has for its purpose the prescribing of conditions and regulations under which common carriers by motor vehicles are permitted to operate upon the highways of this State. The act of 1939 is one to define reckless driving, to restrict the speed on public streets and highways, and to provide for the dimming of lights on motor vehicles; and provided that motor vehicles used on the public highways shall be equipped with reflectors to serve as warning signals to drivers of aproaching vehicles, how the minimum requirements shall be determined, and placed in the Department of Public Safety authority to prescribe the type of reflectors to be placed on all vehicles.

For a better view as to the field which these two acts, the act of 1941, Ga.L.1941 pp. 449-454, and the rules of the Public Service Commission cover, we set out below in parallel columns their respective provisions, which were introduced in evidence.

Ga.L.1931 and Rules of the Public Service Commission:

'The Commission shall have the authority to promulgate rules designed to promote safety, and any such safety rules promulgated or deemed necessary by such Commission shall include the following: (a) Every motor unit and all parts thereof shall be maintained in a safe condition at all times. And the lights and brakes and equipment shall meet such safety-requirements as the Commission shall from time to time promulgate.' Ga.L.1931, pp. 209, 210, Section 24.

'Every bus or truck 80 inches or more in width--on every bus or truck 80 inches or more in overall width, there shall be at least the following devices and reflectors: (a) on the front, two head lamps, one at each side; two amber clearance lamps, one at each side; (b) On the rear, one red tail lamp; one red or amber stop light; two red clearance lamps, one at each side; two red reflectors, one at each side; (c) On each side one amber side-marker lamp, located at or near the front; one red side-marker lamp located at or near the rear; one amber reflector, located at or near the front; one red reflector, located at or near the rear.' Rule 48, subsection 3.

'On every semitrailer or full trailer having a gross weight in excess of 3000 pounds, there shall be at least the following lighting devices and reflectors: (a) On the front, two amber clearance lights, one at each side; (b) On the rear, one red tail lamp; one red or amber stop light; two red clearance lamps, one at each side; two red reflectors, one at each side; (c) On each side, one amber side-marker lamp, located at or near the front; one red side-marker lamp, located at or near the rear; one amber reflector located at or near the front; one red reflector located at or near the rear.' Rule 48, subsection 5.

'When lighted lamps are required on moving vehicles--Whenever any motor vehicle is driven upon a highway there shall be displayed the lighted lamps required under Part 3, Rule 48, during the following times: (a) During the period from one-half hour after sunset to one-half hour before sunrise; (b) During any other time when there is not sufficient light to render clearly discernible person and vehicles on the highway at a distance of 500 feet ahead.' Rule 34.

'No vehicle shall exceed a total outside width including any load thereon, of ninety-six inches; no vehicle shall exceed a length of 35 feet extreme overall dimensions; inclusive of front and rear bumpers; combinations of vehicles shall consist of not more than two units; and, when so combined shall not exceed a total length of 45 feet.' Rule 11-A.

'Every officer, agent, or employee of any corporation and every person who violates or fails to comply with the provisions of Chapter 68-6 relating to the regulation of motor common carriers, or any order, rule, or regulation of the Public Service Commission, or who procures, aids, or abets therein, shall be guilty of a misdemeanor.' Code § 68-9911 Ga.L.1939-1941.

'(a) All vehicles using the public roads and highways of the State of Georgia at night shall be equipped with front and rear reflectors, in addition to the lights required by Section 4 of this Act, to serve as a warning signal to drivers of approaching vehicles. (b) The Department of Public Safety is hereby vested with the authority to determine and specify the type of reflectors to be placed on vehicles; to approve reflectors meeting the minimum requirements; and to make such other reasonable rules and regulations needed for the use of said reflectors. (c) The fact that no reflectors, or reflectors failing to meet the minimum requirements and approval of the said Department of Public Safety according to the said rules and regulations of the Department, are on the vehicle, shall be considered prima facie evidence of negligence on the part of the owner of such a vehicle.' Ga.L.1939, pp. 295, 299-300, Section 5.

'(b) Provided further that all trucks of more than 1 1/2 ton capacity shall have clearance lights at each extremity in the front and clearance lights at each extremity in the rear. Where the cab of said truck is not as wide as the body said clearance [lights] must be placed at the widest extremity of the body, so as to clearly indicate the width of the truck to approaching traffic from either direction. Said lights not to be of any glaring or blinding nature.' Ga.L.1939, p. 299, Section 4.

'(a) Every motor vehicle operated on the public streets or highways of this State shall be equipped with two front headlights located near the side extremities of the front, capable of revealing a person, vehicle or object at least five hundred feet (500') ahead in the darkness, and so arranged that at no time will the beam from said lights create a blinding glare or interfere with the vision of the driver of any vehicle approaching within five hundred feet (500') of said vehicle; and any auxiliary headlights in front must be extinguished when within five hundred feet (500') of any vehicle ahead or any congested traffic area; and shall keep them extinguished until passing the approaching vehicle; provided, further, that every such motor vehicle shall be equipped also with a rear light, red in color, and visible for at least two hundred feet (200') in the darkness in the rear; and provided, further, that said lights,...