Fielder v. Davison

• Decision Date: 12 February 1913
• Parties: FIELDER. v. DAVISON.
• Court: Georgia Supreme Court

77 S.E. 618

139 Ga. 509

FIELDER.

v.DAVISON.

Supreme Court of Georgia.

Feb. 12, 1913.

(Syllabus by the Court.)

1. Highways (§ 169^*)— Running of Automobile — Injuries — "Dangerous Instrumentality."

An automobile is not classified with "dangerous instrumentalities, " such as dynamite, gunpowder, ferocious animals, and the like, so as to make the owner liable for injury occurring from the running of the automobile on the same basis that an owner of such an instrumentality would be liable for an injury occasioned by it.

[Ed. Note.—For other cases, see Highways, Cent. Dig. § 458; Dec. Dig. § 169.*

For other definitions, see Words and Phrases, vol. 2, p. 1828.]

2. Master and Servant (§ 300*)—Negligence of Servant — Owner of Automobile.

If an owner of an automobile is sued for damages on account of an injury caused by the negligent operation of it by his chauffeur, the rules of law touching master and servant will ordinarily be applied for the determination of the liability of the former for the act of the latter.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1209; Dec. Dig. § 300.*]

3. Master and Servant (§ 302*)—Negligence of Servant—"Scope of His Business."

If a chauffeur negligently injures a person by the operation of his master's automobile, the master will be held liable for the tort of his servant, if done by his command or in the prosecution of his business.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. § 302.*

For other definitions, see Words and Phrases, vol. 7, pp. 6356, 6357.]

4. Master and Servant (§ 305*)—Torts of Servant—Liability of Master.

If a chauffeur, while not engaged in the prosecution of his master's business, and without the knowledge or consent of the master and against his instructions, takes the automobile of the latter for the purpose of taking a ride for his own pleasure, and while so engaged negligently injures a person on the street, the master will not be liable.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1223, 1224; Dec. Dig. § 305.*]

5. Master and Servant (§ 302*)—Negligence of Servant—Liability of Master— Respondeat Superior.

If, while a servant is not engaged in the performance of his master's business, and during a time when he is free to engage in his own pursuits, his master lends him an automobile, and while he is using it for his own pleasure, disconnected from any business of the master, he negligently injures another by its operation, the servant will stand in the same position as would another borrower; and the master will not be liable for his acts on the doctrine of respondeat superior.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. § 302.*]

6. Trial (§ 143*)—Directing Verdict—Conflicting Evidence.

Under Civil Code 1910, § 5926, where there is no conflict in the evidence, and that introduced, with all reasonable deductions orinferences therefrom, demands a particular verdict, the court may direct the jury to find for the party entitled thereto. But where there is conflicting evidence as to material issues, it is error for the court to direct a verdict.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.^2-*]

Atkinson, J., dissenting.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by J. W. Fielder against Baumont Davison. Judgment for defendant, and plaintiff brings error. Reversed.

R. R. Arnold, of Atlanta, for plaintiff in error.

Payne, Little & Jones, Slaton & Phillips, and Leonard Haas, all of Atlanta, for defendant in error.

LUMPKIN, J. J. W. Fielder brought suit against Baumont Davison to recover damages on account of a personal injury inflicted by the automobile of the latter. The defense set up by the evidence was that the chauffeur of the defendant took the automobile of the latter from the garage on his lot at night, without the authority, permission, or knowledge of the defendant, and against his orders, and was using the machine for a pleasure ride for himself when the injury occurred. At the close of the evidence, the court directed a verdict for the defendant, and the plaintiff excepted.

1. The courts hold, with practical, if not absolute, uniformity, that an automobile is not to be classified with what are called "dangerous instrumentalities, " such as ferocious animals, dynamite, gunpowder, and other inherently dangerous contrivances or agencies; and that, while more nearly approximating a locomotive, the ordinary automobile differs materially therefrom. As to those things a duty rests upon the owner to keep them properly within his control; and when he does not do so he has sometimes been held liable for injury resulting from the improper use of such instrumentalities by a servant, though not at the time in the performance of his duty. But the automobile, while a modern invention, is, in its usual form, a vehicle for use in the transportation of persons or property upon the roads and highways. It furnishes one of the legitimate methods of traveling along the streets and roads. In Macomber v. Nichols, 34 Mich. 217, 22 Am. Rep. 522, Judge Cooley said: "When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods; and it cannot be assumed that these will be the same from age to age, or that new means of making the way useful must be excluded merely because their introduction may tend to the inconvenience, or even to the injury, of those who continue to use the road after the same manner as formerly." See, also, Acts 1910, pp. 90, 94, § 11.

2. Owing to the nature and construction of the machines and the employment of steam, gasoline, or electricity as a motive power, certain dangers naturally arise from their use and operation, and those who operate them must exercise that degree of care which is commensurate with the dangers naturally incident to such use. But, in the absence of any statutory provision to the contrary, liability for injuries arising from operating automobiles is based on negligence or willful tort in the use or operation, and not on the theory of classifying such machines as inherently dangerous agencies. Huddy on Automobiles (3d Ed.) § 30, and citations; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338; Danforth v. Fisher, 75 N. H. 1ll, 71 Atl. 535, 21 L. R. A. (N. S.) 95, 139 Am. St. Rep. 670; Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, 14 L. R. A. (N. S.) 216, 125 Am. St. Rep. 915, and cases cited in the next division of this opinion. On the subject of directing a verdict the Supreme Court of Washington distinguished the case last cited from one with different facts in Kneff v. Sanford, 63 Wash. 503, 115 Pac. 1040. As will be seen later in this opinion, there are additional facts in the present case, and it is not necessary to go as far as that court did in the Kneff Case.

If the owner of an automobile is sued for damages on account of an injury caused by it while driven by his chauffeur, the rules of law touching master and servant and the liability of the former for the act of the latter are to be applied.

3. Omitting the fellow servant doctrine, the general rule is that a master is liable for the tort of his servant, whether negligent or voluntary, if done by his command or in the prosecution and scope of his business. Civil Code, § 4413. The expressions "in the scope of his business" or "in the scope of his employment, " or similar words, have sometimes been given too narrow a meaning. A master rarely commands a servant to be negligent, or employs him with the expectation that he will commit a negligent or willful tort; but if the act is done in the prosecution of the master's business—that is, if the servant is at. the time engaged in serving the master—the latter will be liable. Savannah Electric Co. v. Wheeler, 128 Ga. 550, 553, 58 S. E. 38, 10 L. R. A. (N. S.) 1176 et seq.. But for a tort committed by the servant entirely disconnected from the service or business of the master, the latter is not responsible under the doctrine of respondeat superior, although it may occur during the general term of the servant's employment.

4, 5. It is very generally held, unless there is a statutory provision to the contrary, that if a chauffeur or other servant take the automobile of his master, withoutthe knowledge or consent of the latter and contrary to his directions, and while riding in it for his own purposes, and not in connection with the business of the master, negligently injures a passer, the master will not be liable. And this is also held where the owner loans his automobile to the chauffeur at a time when not engaged in his service, and for the private use of the chauffeur, disconnected from the master's business. Mc-Intire v. Hartfelder-Garbutt Co., 9 Ga. App. 327, 71 S. E, 492; Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227; Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133, 5 L. R. A. (N. S.) 598; Babbitt on Law of Motor Vehicles, § 570, and cases cited above. The tenth section of the act of 1910 (Acts 1910, p. 93) preserves any right of action for damages, but does not declare a new right.

It is unnecessary to discuss special cases, such as, where a parent buys an automobile to be used and operated by his son, whether the son becomes the parent's agent for that purpose, or whether, if an owner knowingly allows a child, an imbecile, a drunken person, or a grossly incompetent and unskilled person to take charge of his machine, which is dangerous if unskillfully operated, and to drive it out upon a crowded thoroughfare, his liability for an injury resulting is to be measured solely by the doctrine of respondeat superior, or whether, in such a case, the owner would himself be guilty of negligence. These or similar possible questions are not here involved. We are dealing with the case before us and the general rule applicable...