Dove v. National Freight, Inc.
| Decision Date | 01 March 1976 |
| Docket Number | No. 2,Nos. 51504-51506,s. 51504-51506,2 |
| Citation | 225 S.E.2d 477,138 Ga.App. 114 |
| Parties | A. W. DOVE v. NATIONAL FREIGHT, INC. Lorene DOVE v. NATIONAL FREIGHT, INC. Amory SEAGRAVES v. NATIONAL FREIGHT, INC |
| Court | Georgia Court of Appeals |
Guy B. Scott, Jr., athens, for appellants.
Erwin, Epting, Gibson & McLeod, E. Davison Burch, Athens, for appellee.
Ronnie Leon Watson was an employee of James Nicholson, the owner of a tractor which was leased (together with driver) to the common carrier, National Freight, Inc., for use in its business. Watson resided in Jackson County, Georgia.
On March 8, 1974, in Atlanta, Georgia, Watson picked up a load of freight in a trailer owned by the common carrier, National Freight, Inc. He proceeded en route, to arrive at Wilson, North Carolina, on March 12 (Monday), expecting to spend Saturday night in Jackson County, Georgia, and to re-fuel the tractor in Jackson County.
While driving in Jackson County, before reaching the home of his mother-in-law, Watson had a collision with a pick-up truck driven by Amory Seagraves in which A. W. Dove was a passenger. Both Seagraves and Dove received serious bodily injuries as a result of the collision. Lorene Dove, wife of A. W. Dove, was allegedly injured by reason of loss of consortium of her husband as a result of the collision.
All three of these injured persons, in separate suits, sued National Freight, Inc. and Insurance Company of North America as defendants on the theory that the driver of the tractor-trailer was at the time of the collision an agent of National Freight, Inc., a motor common carrier. The insurer was named by virtue of Code Ann. §§ 68-612, 68-618.
The defendant denied liability. Extensive discovery was conducted. The defendants moved for summary judgment, and plaintiffs moved for partial summary judgment on the question of employment, contending the facts show conclusively that the driver was an employee of the motor common carrier. Judgment was entered in favor of the defendants on their motion, holding them not liable; and the plaintiffs' motion for summary judgment was denied. Plaintiffs appeal. Held:
1. Counsel for the plaintiffs contend this case is controlled by Montgomery Trucking Co., Inc. v. Black, 231 Ga. 211, 200 S.E.2d 882. There the Supreme Court reversed the Court of Appeals in Black v. Montgomery Trucking Co., Inc., 129 Ga.App. 36, 198 S.E.2d 378. We had held defendant was not entitled to a summary judgment and the Supreme Court took the opposite view. Counsel for defendants contend that these two cases are directly in point as to the facts involved. In reversing the Court of Appeals in Black, supra, the Supreme Court held that Code Ann. § 12-203, in reference to bailments, controls in that if the owner of the tractor sent its own driver with the property bailed (the tractor and driver), the common carrier would be liable only for the consequence of its own direction and gross neglect.
That case was decided in 1973, and did not mention the Federal Statute, 49 U.S.C.A. § 304(a)(3). The Supreme Court held that the leased equipment in the Black case was under the complete control and direction of the owner and not the trucking company. But under 49 U.S.C.A. § 304(a)(3), the Interstate Commerce Commission is authorized to prescribe with respect to the use by motor common carriers (under leases, contracts, or other arrangement) of motor vehicles not owned by them, such regulations as may be reasonably necessary in order to assure that while motor vehicles are being so used, motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance with applicable law and regulations, as if they were the owners of such vehicles. This case is therefore controlled by the written lease which must be prepared and must meet the requirements of 49 U.S.C.A. § 304, and all rules of the Interstate Commerce Commission adopted pursuant thereto. Accordingly, Montgomery Trucking Co., Inc. v. Black, 231 Ga. 211, 200 S.E.2d 882, supra, is not controlling here.
2. The written lease and insurance policy is found in the additional record forwarded to this court. These documents were submitted to opposing counsel on October 11, 1974, in response to the plaintiff's first request for production of documents. But it appears that same were not filed in the office of the clerk until October 4, 1975, almost...
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...from the presumption be refuted by uncontested evidence, [the issue] must be determined by a jury. [Cits.]" Dove v. Nat. Freight, Inc., 138 Ga.App. 114, 116(5), 225 S.E.2d 477. 2. A witness from the Georgia Public Service Commission was allowed while testifying to read into evidence the PSC......
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...177, 180, 236 S.E.2d 357 (1977); Lawal v. Stanley Bostitch Co., 209 Ga.App. 439, 440, 433 S.E.2d 706 (1993); Dove v. Nat. Freight, 138 Ga.App. 114, 117(6), 225 S.E.2d 477 (1976). From May 1983, when the child was less than a year old, until September 1984, the parents failed to adequately c......
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