Clark v. Atlanta Veterans Transp., Inc., 41930

• Decision Date: 25 April 1966
• Docket Number: No. 41930,No. 3,41930,3
• Citation: 148 S.E.2d 921,113 Ga.App. 531
• Parties: Barbara Ann CLARK v. ATLANTA VETERANS TRANSPORTATION, INC
• Court: Georgia Court of Appeals

Page 921

148 S.E.2d 921

113 Ga.App. 531

Barbara Ann CLARK v. ATLANTA VETERANS TRANSPORTATION, INC.

No. 41930.

Court of Appeals of Georgia, Division No. 3.

April 25, 1966.

Syllabus by the Court

1. While proof of agency may be made by circumstances, apparent relations and conduct of the parties, mere proof that a taxicab had thereon the lettering 'Checker Cab,' together with a card delivered by the driver to a passenger bearing his name, the cab number and the telephone number of a company operating taxicabs falls short and is insufficient to raise a presumption of agency on the part of the driver for the company.

2. Where there is no proof of the agency of the driver a verdict against the company based upon his negligence is unauthorized.

Barbara Ann Smith (now Clark) and her grandmother came into the Terminal Station at Atlanta from Jacksonville and hailed a taxicab to take them to the Greyhound Bus Station. The cab had the lettering 'Checker Cab' on it. On the way to the bus station it collided with the rear of another vehicle at a street intersection controlled by traffic signals, and plaintiff-appellant was injured. The driver gave her a card bearing his name, the cab number and the telephone number of Veterans Cab, asserting that the occurrence was his fault. She had no other conversation with him.

In her petition she alleged in paragraph 1 that the defendant, Atlanta Veterans Transportation, Inc., is a Georgia corporation with a place of business at 365 14th Street, Atlanta, and that it does business as Veterans Cab Company and as Checker Cab Company. This allegation was admitted. It was also alleged in paragraph 3 that she had employed Reuben Jacob Downing 'who was in control and driving for hire Checker Cab No. 2, which was owned by the defendant corporation and which was bearing Georgia license No. 4-J-37391' to drive her from the Terminal Station to the Greyhound Bus Station. The allegations of that paragraph were denied. In paragraph 4 it was alleged that 'said Reuben Jacob Downing, agent and servant of the defendant cab company, who at all times mentioned herein was on and about his master's business and acting within the scope of his vested authority' proceeded to drive the cab along the street until it struck the rear end of another vehicle at a controlled street intersection where traffic had stopped for a red light. The allegations of that paragraph were denied. In paragraph 5 she alleged that 'the defendant, through its agent and servant, Reuben Jacob Downing, was running at a high rate of speed of more than forty miles an hour and failed to stop or turn' in order to avoid striking another taxicab stopped ahead at the intersection. The allegations of that paragraph were denied.

A vedict was rendered for the plaintiff but the court, upon motion fr judgment notwithstanding the verdict, entered judgment for the defendant, and plaintiff appeals.

Wotton, Long, Jones & Read, R. Beverly Irwin, Calhoun A. Long, Atlanta, for appellant.

Hansell, Post, Brandon & Dorsey, Gary W. Hatch, C. Edward Hansell, Atlanta, for appellee.

EBERHARDT, Judge.

1. We affirm. The basis of the motion for judgment notwithstanding the verdict was that the plaintiff had utterly failed to prove the agency of the driver of the cab. It is to be noted that every allegation in the petition by which his agency was asserted was expressly denied, and ownership of the vehicle by the defendant was denied.

There was no proof of the ownership of the vehicle, and no proof that it bore the vehicle license plate as alleged or any license plate issued to the defendant. There was no proof that the driver, Downing, was in any way employed by the defendant, that he received any remuneration from it, or that he was subject to its control or direction in the operation of the cab. There was proof only that the cab was lettered 'Checker Cab' and that the driver had, at the scene of the collision, given plaintiff a card bearing his name, the number of the cab and the telephone number for Veterans Cab. Was this, together with the admission that the defendant does business as Checker Cab Company and Veterans Cab Company, sufficient to make prima facie proof of agency? We think not.

'Proof of the fact that a locomotive engine had written on it the words 'Southern Railway Company', unsupported by any other fact, was insufficient to authorize the inference that it was owned by the Southern Railway Company and that it was being operated at the time of injury by employees of the Southern Railway Company engaged in its business.' Southern R. Co. v. Hullender, 62 Ga.App. 274, 8 S.E.2d 674. Thus evidence that the cab had the name 'Checker Cab' lettered on it was not proof of ownership of the vehicle or of agency on the part of the driver.

If there had been proof of ownership of the vehicle by the defendant there may have been sufficient circumstances to raise a jury question as to the driver's agency, i.e., the fact of admission by defendant that it did business as Checker Cab, that it was being used as a taxicab, and that plaintiff and her grandmother had been taken as paying passengers at the Terminal Station to be transported to the Greyhound Bus Station. But there was no proof of ownership, and since the defendant denied ownership no inference of it can arise from the lettering on the vehicle. The operation may have been similar to that which appeared in Styles v. Dennard, 97 Ga.App. 635, 104 S.E.2d 258 or Atlanta Car for Hire Assn., Inc. v. Ware, 112 Ga.App. 668(2), 145 S.E.2d 813. Indeed, it has been held, concerning an automobile, that 'The possessor of personal property is presumed to be its owner, until the contrary appears.' Giles v. Citizens Ins. Co. of Mo., 32 Ga.App. 207, 122 S.E. 890. Downing was in possession and nothing appears to rebut the presumption.

Generally there are two circumstances to be proven in order to raise the necessary inference that the vehicle was being operated in the master's business and within the scope of the employee's employment, viz., ownership of the vehicle by the master and that the driver was the owner's servant. Perry v. Lott, 38 Ga.App. 729, 145 S.E. 479; Dawson Motor Co. v. Petty, 53 Ga.App. 746, 186 S.E. 877.

If it be contended that the card delivered to plaintiff by the driver carrying his name, the cab number and the telephone number of Veterans Cab, a name under which defendant admitted doing business, is a declaration of agency on the part of the driver, it does not prove that fact, for agency cannot be proven by the mere...