Cowart v. Jordan

• Decision Date: 25 October 1947
• Docket Number: No. 31673.,31673.
• Parties: COWART. v. JORDAN.
• Court: Georgia Court of Appeals

44 S.E.2d 804

COWART.

v.JORDAN.

No. 31673.

Court of Appeals of Georgia,

Division No. 2.

Oct 25, 1947.

Syllabus by the Court.

1. "If a servant is employed to do certain work for his master and employs another person to assist him, the master is liable for the negligence of the assistant only when the servant had authority, ex-press or implied, to employ him, or when the act of employment is ratified by the master."

2. Where the owner of an automobile uses it privately for business purposes, or publicly as a taxicab, he can not be held liable for an injury caused by the car while operated by a person unknown to the owner and without his express or implied permission.

3. Where the uncontradicted evidence shows that M, under his contract with C, the defendant, to operate the taxicab, was without authority to permit anyone else to use or operate the taxicab for any purpose whatsoever, it was not within the power of M to permit anyone else to use the taxicab either in the course of the owner's business, or otherwise. In neither event could M, to this extent, extend the scope of his agency without the consent of his principal, C.

Error from City Court of Albany; Clayton Jones, Judge.

Suit by Mrs. W. D. Jordan against Mathias Cowart for injuries sustained in automobile collision. Verdict for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.

Judgment reversed.

Mrs. W. D. Jordan brought suit against Mathias Cowart for personal injuries alleged to have been sustained as the result of a collision between an automobile being operated by the plaintiff and an automobile owned by the defendant, Cowart, which was being operated at the time of the collision by one Charlie Lee Mitchell. The jury returned a verdict in favor of the plaintiff; the defendant made a motion for new trial based on the general grounds; this motion was overruled, and the defendant excepted.

The evidence shows that the defendant owned one automobile which he operated "from the line" of the New Deal Taxicab Company. The New Deal Taxicab Company was not a taxicab business owned and operated by the defendant. It was simply a name under which the defendant and other independent owners of automobiles each operated his automobile as a taxicab. Each owner, including the defendant, paid a stated monthly amount for each automobile that he operated "from the line" which was intended and used solely for the purpose of paying the expense of maintaining and operating an office, including a telephone and the salary of a girl to answer the telephone and receive calls for taxi-cabs. Each cab was under the sole and exclusive direction and control of its owner, with no authority in any of the other owners of taxicabs which were operated from the line of the New Deal Taxicab Company, to control the manner of its operation. The owner of a cab could put his car on the line or take it off whenever he saw fit. The several owners of cabs operating under the name and style of the New Deal Taxicab Company employed no person who was given any authority or control over the cabs being operated from that line. The owner of each cab collected the fares earned by his cab and was under no duty or obligation to account therefor to any of the other owners. Hence, it appeared that the extent of the defendant's operation of a "taxicab business" under the name of New Deal Taxicab Company was simply the independent operation of one taxicab from a stand, called the New Deal Taxicab Company, the expenses of which, as above stated, were paid by the defendant and the other independent owners and operators of taxicabs from that stand.

The one taxicab owned by the defendant was operated on a commission basis by Jessie Maddox. The defendant testified in part as follows: "* * * I hired a fellow to drive, a Jessie Maddox. I hired Jessie Maddox about 3 or 4 months before March 24. The car was turned over to him to operate and he operated it night and day. He was in full charge of the operation. As to on what basis did he operate, I paid him so much out of the dollar. I mean I paid him a commission. He then operated the automobile as he saw fit, night and day if he wished. Whatever he took in operating the car he reported it back to me, and I would settle up with him on a commission basis. I had nothing to do with operating the car. I left the operation entirely up to Jessie Maddoxnight or day, any time. * * * As to what control did I exercise over the car after I turned the car over to Jessie Maddox to operate a taxicab business, I always told everyone I hired that I didn't want two men to drive the car; that when they got tired or wanted the day off, to bring the car to my house and park it. * * *" On cross-examination the defendant testified: "During the time that Jessie Maddox drove that car for me, which I say was some several months prior to the time the accident happened, to my knowledge, he never hired anybody to drive that car for him; if he had and I found it out, he wouldn't drive it any more. I gave him, and everybody else that drove for me, specific instructions not to let anybody else drive. At the time the accident happened Jessie Maddox was not driving my car. I forgot the boy's name who was driving it, and I wouldn't know him if I saw him. His name was Charlie Mitchell, that's it. He never worked for me. I had not given Jessie Maddox authority to employ Charlie Mitchell to drive that cab for me. I did not give Charlie Mitchell in this case authority to drive that cab for me, because I've never seen him. I have not seen Charlie Mitchell since the accident happened, I've never seen him. * * *"

On re-direct examination the defendant testified: "In other words, I placed the car in charge of Jessie Maddox and he drive day and night as far as I know or could tell. He had complete charge of the car and kept it at his house when it wasn't in use. The only thing I had to do with the operation of the taxi business was for him to report to me each day the fares he had taken in and I had a settlement with him. The entire operation of the taxicab business, excusing letting somebody else drive, was left entirely to Jessie Maddox. By excusing letting somebody else drive I mean just this: I always advised him to not let nobody else drive the car but him; but of course, if I was to give him the opportunity of hiring somebody else or putting somebody else on the car that would be turning the car over to him every way. You can't give a lot of colored people an opportunity to do something; they go above it. Then according to my statement he had entire charge of operating that taxi-cab business except letting someone else drive for him. * * *"

The plaintiff relied upon the testimony of Charlie Lee Mitchell to show that the defendant was bound because of the general custom of employees of owners operating taxicabs to employ substitute drivers. Mitchell testified in effect that there were persons who had obtained taxi driver's permits who did not have regular jobs driving a cab, who hung around the various cab companies, including the New Deal Taxicab Company, and would drive extra when anyone would hire them. The witness did not, in fact, know of any custom at the New Deal Taxicab Company whereby an employee of an owner of a cab would, when he became tired, employ such an extra driver to drive the...