Chrostowski v. G & MSS Trucking, Inc., A90A2189
| Decision Date | 05 December 1990 |
| Docket Number | No. A90A2189,A90A2189 |
| Citation | 198 Ga.App. 140,401 S.E.2d 53 |
| Parties | CHROSTOWSKI v. G & MSS TRUCKING, INC., et al. |
| Court | Georgia Court of Appeals |
Stephens & Shuler, Charles W. Stephens, Ann A. Shuler, Gainesville, for appellant.
Neely & Player, Richard K. Hines V, Lisa M. Radtke, Atlanta, for appellees.
Loretta Stowe Chrostowski, as administratrix of the estate of Robert Gene Stowe and as guardian of Sara Renee Stowe and Robert Adam Stowe, filed suit against G & MSS Trucking, Inc., Billy Wayne Milam, and Royal Indemnity Company (Royal), to recover damages for the death of Robert Gene Stowe. Stowe was killed when the chicken truck that he was driving was struck and crushed by a log truck carrying a load of logs and driven by Milam. Milam was charged with reckless driving, homicide by vehicle in the first degree, driving under the influence of intoxicating drugs, driving on the left side of the road, and speeding.
The cab of the log truck had G. D. K. Trucking, Inc., printed on it, and Brownlow, the president of both G. D. K. and G & MSS, claims that G & MSS did not own and was not operating the log truck. Brownlow operated G & M Trucking, which was not incorporated, until 1986 when it was incorporated as G & MSS. In 1988 he formed a second corporation known as G. D. K. G & MSS was to be an interstate carrier and G. D. K. was to operate only within Georgia. Brownlow claims that G & MSS sold the truck to G. D. K. some four months prior to the accident. Appellant's lawsuit alleged that the truck was owned and operated by both companies, that Milam was employed by both trucking companies, and that Stowe was killed as a result of the reckless and negligent actions of the driver, Milam. G & MSS denied that Milam was one of its employees.
The documentary evidence showed that title to the truck was not transferred from G & MSS to G. D. K. until more than seven months after the wreck, and the tag receipt for the trailer was issued to G & M Trucking, the unincorporated predecessor of G & MSS. Maintenance records are also in the name of G & M Trucking. South Carolina fuel tax records show that shortly before the accident, G & MSS represented that it owned the truck in question and fuel tax decals were issued which would not become effective until three months before the accident. While Milam testified that G. D. K. trucks do not travel out of state, photographic evidence shows that the truck that he drove on the date of the accident had fuel tax decals from many states affixed to its bumper. Milam worked for G & M until it was incorporated as G & MSS in 1986, and allegedly went to work for G. D. K. when it was incorporated in 1988. His work driving trucks for Brownlow's corporations was rather sporadic because he was frequently "on restriction" at the insurance companies' request because his driving record included many speeding tickets and other violations. Records for Milam's hospital admission for treatment for his alcohol and drug problems approximately six weeks before the accident indicate that he claimed that he was employed by G & M although his deposition testimony was that he worked for G. D. K. after its incorporation date. His payroll records indicate that his work starting date was during the period that Brownlow was operating G & M Trucking.
G & MSS and Royal Indemnity Company moved for summary judgment contending that they should not be defendants in the lawsuit because G & MSS did not own the truck in question, and Milam was not employed by G & MSS. The trial court granted summary judgment in favor of G & MSS and Royal Indemnity holding that title alone was insufficient to establish liability, that there was no evidence that Milam was an agent of G & MSS, that G. D. K. and G & MSS were separate entities, and that there was no evidence that Royal was the insurer of the truck at the time of the accident.
1. On summary judgment the movant bears the burden of establishing lack of a genuine issue of fact, and a right to a judgment as a matter of law. Any doubts are to be resolved against him. Holland v. Sanfax, 106 Ga.App. 1, 4, 126 S.E.2d 442 (1962). The party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence in determining whether a genuine issue of fact exists. Eiberger v. West, 247 Ga. 767, 768, 281 S.E.2d 148 (1981); Malcom v. Malcom, 112 Ga.App. 151, 144 S.E.2d 188 (1965). Bragg v. Missroon, 186 Ga.App. 803, 806, 368 S.E.2d 564 (1988). Applying these rules to the instant case we find that there was sufficient evidence presented to raise a jury question as to whether G & MSS owned the vehicle involved in the fatal accident: title to the log truck was not transferred to G. D. K. until many months after the accident; the tag receipt to the trailer was issued to G & MSS's predecessor; a vehicle condition report which was given by the party maintaining the repairs on the vehicle was given to "G & M Trucking" one month prior to the accident; South Carolina fuel tax records indicate that G & MSS claimed that it owned the vehicle; and other states' fuel tax decals were affixed to its bumper. A material question of fact as to the vehicle's ownership existed and required resolution by a jury.
2. While the trial court held that mere ownership of a vehicle is not sufficient to establish liability because proof of Milam's agency must be established, we believe that the court erred in holding that the plaintiff produced no evidence to support...
To continue reading
Request your trial
-
Sellers v. Air Therm Co., Inc.
...275 S.E.2d 376 (1980); see also Gordy Constr. Co. v. Stewart, 216 Ga.App. 882, 456 S.E.2d 245 (1995); Chrostowski v. G & MSS Trucking, 198 Ga.App. 140, 142(1), 401 S.E.2d 53 (1990). At trial plaintiff has the burden of proving both ownership and agency; however, on summary judgment plaintif......
-
Chakales v. Hertz Corp.
...purported parties to the agency relationship. Larkins v. Boyd, 205 Ga. 69, 72, 52 S.E.2d 307 (1949); Chrostowski v. G & MSS Trucking, Inc., 198 Ga. App. 140, 143, 401 S.E.2d 53 (1990); Lewis, 139 Ga.App. at 858, 229 S.E.2d at 768. Thus, if there is any competent evidence, beyond the bare as......
-
Alamo Rent-A-Car, Inc. v. Hamilton
...when the owner knows the driver to be either incompetent or habitually reckless...." (Citations omitted.) Chrostowski v. G & MSS Trucking, 198 Ga.App. 140, 143(3), 401 S.E.2d 53 (1990). Moreover, to recover under this theory, an owner's " 'negligence must concur, as part of the proximate ca......
-
The Pep Boys v. Yahyapour, No. A06A0172.
...v. Krystal Co., 173 Ga.App. 574, 576(3), 327 S.E.2d 546 (1985). 7. (Citations and punctuation omitted.) Chrostowski v. G & MSS Trucking, 198 Ga.App. 140, 143(2), 401 S.E.2d 53 (1990). 8. Supra at 575-576(3), 327 S.E.2d 546. See also Fuller v. Charter South, 216 Ga.App. 211, 212-213(1), 453 ......