Floyd v. Colonial Stores, Inc.

• Citation: 176 S.E.2d 111,121 Ga.App. 852
• Decision Date: 13 May 1970
• Docket Number: 2,Nos. 1,3,No. 44918,44918,s. 1
• Parties: John FLOYD v. COLONIAL STORES, INC., et al
• Court: United States Court of Appeals (Georgia)

Page 111

176 S.E.2d 111

121 Ga.App. 852

John FLOYD v. COLONIAL STORES, INC., et al.

No. 44918.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 13, 1970.

Rehearing Denied June 4, 1970.

Syllabus by the Court

1. Where an owner is present in his automobile being driven by another, an inference may properly be drawn by the jury that the owner had the right to control the driver as his servant so as to render the owner liable for the driver's negligence under the doctrine of respondeat superior, or so as to render him chargeable with the driver's negligence in the owner's action against a third party. However, this inference may be drawn only where nothing else appears. When uncontradicted and unimpeached evidence is produced as to the true facts, the inference disappears and does not create a conflict in the evidence so as to require its submission to a jury. Where the facts show that under an agreement between the owner and the driver the latter was an independent contractor and that the owner had not interfered and assumed control of the driver so as to create the relationship of master and servant prior to the collision, and no other basis appears for imputable negligence, the owner is not chargeable with the driver's conduct in an action against a third party nor is he liable for the driver's negligence in the third party's action against him.

2, 3. No reversible error appears in the sustaining and overruling of objections to questions.

4. No ruling is made on enumeration of error No. 8 for reasons stated in the opinion.

5. Where annunity tables are in evidence, a charge explaining their use must be given where requested and authorized by the evidence.

6. Where a witness is known, competent, and compellable to testify as to material facts of which he is cognizant, counsel may properly comment in his argument before the jury on the failure of a party to whom the witness is accessible to produce the witness' testimony.

John Floyd brought suit against John Craft and Colonial Stores, Inc. seeking to recover damages allegedly resulting from a collision which occurred when Craft, driving a vehicle owned by his employer Colonial, struck the rear of a horse trailer being towed by a pick-up truck owned by the plaintiff but occupied by him as a passenger while driven by Sam Hodges. The trailer was struck as Craft attempted to pass from the rear. Colonial filed a counterclaim against plaintiff seeking to recover for damage to its vehicle.

The evidence showed that Hodges, who was driving plaintiff's truck, operated a horse stable near Lithonia. In the past he and plaintiff had jointly owned two or three horses which were kept at Hodges' place. Plaintiff's wife lost interest in riding, however, so plaintiff had traded to Hodges his part interest in the several horses for sole ownership of one of the horses which he desired to board at a farm near Marietta. Hodges decided to move to Pennsylvania and, being informed of this, plaintiff told Hodges that he was going to go ahead and move the horse. Hodges, however, proposed that if plaintiff would leave the horse at Hodges' place for him and his wife to ride until they were ready to move, Hodges would, in return, feed it and deliver it to the farm near Marietta. Plaintiff agreed and the horse was left in Hodges' possession for some three weeks.

On the day of the collision plaintiff went to Hodges' place to insist that Hodges perform his part of the bargain and deliver the horse, as he understood that Hodges was moving in a couple of days. Hodges was agreeable to moving the horse at that time since he knew where he could borrow a horse trailer, and he asked plaintiff to lend him his pick-up truck for towing the trailer. Plaintiff agreed, since he 'wanted to go ahead and let him get the horse up there.' Plaintiff had no way to get home, however, so Hodges suggested that plaintiff ride with him, which he did, and Hodges drove the truck to Mr. Jarrett's to borrow the trailer with plaintiff riding as a passenger. Hodges borrowed the trailer, hooked it up and checked the lights, and drove back to his place where he loaded the horse. Plaintiff took no part in any of these operations. Hodges then proceeded toward the farm near Marietta with plaintiff riding as a passenger, and the collision occurred just before they reached the farm.

Plaintiff testified that nothing was said about the route to be followed to Marietta, as they had both been to the farm before. He did not suggest to Hodges any manner in which the truck should be driven and made no comment at all in this regard.

On cross examination plaintiff testified: 'Q. Now, do I understand, Mr. Floyd, that on this trip you all were just simply riding along-I mean you were simply just riding along as a pure passenger and had no interest in this trip or whatever you want to call it? A. Yes, sir, I was a passenger. Mr. Hodges, had told me-Q. I didn't ask you-A. Yes, I was a passenger. Q. Had no interest in the trip at all personally? A. Yes, sir, I had a personal interest in it. Q. And the interest you had, one was he was driving your truck, wasn't he? A. I guess you could say that was an interest. Q. And I guess we could say it was an interest that he was hauling your horse in the trailer? A. That was the main point of the whole thing.'

On redirect plaintiff testified: 'Q. A little bit earlier Mr. DeRieux asked you about interest in this trip, that you owned the truck and horse, what did you mean in response to his question about interest? A. Well, I meant Mr. Hodges you could say owed me a debt and he had promised if I felt my horse down there for him to ride that he would feed it and deliver it, he knew he was going to move up north in the next day or so-I knew, I was interested or I had an interest in this trip in seeing that he carried out that part of the bargain. Q. That was your only interest, that he abide by his contract? A. Yes.'

The facts are in dispute as to what occurred immediately before the impact and as to whether either or both drivers were negligent. After the collision the vehicles were blocking the road, and Hodges drove the truck into the driveway of the farm and Craft drove Colonial's vehicle to the side of the road. The horse had become excited, so plaintiff stated that he was going on up to the barn to unload it and would call the police at that time. Accordingly he left Craft and Hodges at the scene and drove the truck up the driveway to the barn, called the police from an adjacent tenant house, and unloaded the horse.

The trial court ruled that the conduct of Hodges was imputable to plaintiff as a matter of law and so charged the jury, gave several other charges bottomed on this proposition and failed to give plaintiff's requests that any negligence of Hodges would not be imputed to plaintiff; and overruled plaintiff's motion for directed verdict on Colonial's counterclaim. The jury, apparently finding that Hodges and Craft were equally negligent under the comparative negligence charge, and imputing Hodges' negligence to plaintiff, found for the defendants in the main action and for the plaintiff on the counterclaim. Plaintiff appeals from the judgment on the verdict.

Moore & Morris, Charles E. Moore, W. Grady Morris, Atlanta, for appellant.

Greene, Buckley, DeRieux & Jones, James A. Eichelberger, William M. Rich, Atlanta, for appellee.

EBERHARDT, Judge.

1. The main question presented by this appeal is whether the negligence of Hodges, the driver of plaintiff's vehicle, if any, was imputable to the plaintiff-passenger as a matter of law, as contended by the defendants or was not, as contended by the plaintiff, or if neither whether there was a question for the jury. Defendants cite Pollard v. Roberson, 61 Ga.App. 465, 6 S.E.2d 203, Rogers v. Johnson, 94 Ga.App. 666, 96 S.E.2d 285, and Morris v. Cochran, 98 Ga.App. 786, 106 S.E.2d 836, for the proposition that if the owner of a vehicle is present in it at the time of the collision, the negligence of the driver will be imputed to him as a matter of law. It is urged that the only exception to this rule, and one which is not applicable to the instant case, is where the owner occupies a 'subordinate role' to the driver and surrenders all control to him-e.g., stepsister/owner to stepbrother/driver (Blount v. Sutton, 114 Ga.App. 767, 152 S.E.2d 777); deputy sheriff/joint owner to sheriff joint owner-driver (Archer v. Aristocrat Ice Cream Co., 87 Ga.App. 567, 74 S.E.2d 470).

This is not an accurate statement of the rule. So far as we know it is nowhere held that the negligence of a driver is ipso facto imputable to the owner simply because he may be a passenger at the time of the collision. At most there is only a presumption, or inference, in the absence of evidence to the contrary, that the owner has the right to control the driver as his agent or servant and is therefore liable for the driver's negligence under the doctrine of respondeat superior, or it therefore chargeable with his negligence in the owner's action against a third party. See Hightower v. Landrum, 109 Ga.App. 510, 516, 136 S.E.2d 425; Shapiro Packing Co. v. Landrum, 109 Ga.App. 519(5), 136 S.E.2d 446; Annot., 50 A.L.R.2d 1281; 8 Am.Jur.2d 123, 225, Automobiles and Highway Traffic §§ 572, 674. Thus we held in Trawick v. Chambliss, 42 Ga.App. 333(3), 156 S.E. 268; 'Evidence that the defendant owned the automobile which caused the injury, and was riding in it but not driving it at the time of the occurrence, was sufficient to authorize the inference that the driver was the defendant's agent or servant and that the defendant was thus in control of the operation of the vehicle.' And in Blount v. Sutton, 114 Ga.App. 767, 152 S.E.2d 777, supra, a full court case with two judges dissenting and one judge not participating, we held that this inference applies only 'where nothing else appears. When uncontradicted and unimpeached evidence is produced as to the real facts,...