Food Giant, Inc. v. Davison

• Decision Date: 23 October 1987
• Docket Number: No. 74824,74824
• Citation: 362 S.E.2d 447,184 Ga.App. 742
• Parties: FOOD GIANT, INC. v. DAVISON.
• Court: Georgia Court of Appeals

Page 447

362 S.E.2d 447

184 Ga.App. 742

FOOD GIANT, INC. v. DAVISON.

No. 74824.

Court of Appeals of Georgia.

Oct. 23, 1987.

Rehearing Denied Nov. 4, 1987.

Certiorari Denied Jan. 6, 1988.

Donald R. Andersen, Tucker, and Robin E. Goff, Atlanta, for appellant.

Larry K. Butler, James J. McGinnis and Frank R. Seigel, Atlanta, for appellee.

CARLEY, Judge.

At the time relevant to this appeal, appellee-plaintiff was employed as a truck driver by Stelman Leasing. Stelman Leasing is in the business of hiring out its trucks and drivers to others. In the course of its business, Stelman Leasing hired out a truck and the services of appellee to Charter Express. Charter Express then sent appellee to make delivery of 48,000 pounds of cheese to the Atlanta warehouse of appellant-defendant Food Giant, Inc. Upon his arrival at appellant's warehouse, appellee was told by appellant's dock supervisor that he must unload his own truck or the cheese would not be accepted. Appellee initially refused to comply with this direction and he telephoned both Stelman Leasing and Charter Express for instructions. In these telephone conversations, appellee successfully negotiated for additional payment for unloading the truck, and only then did he agree to do so. After his telephone conversations with representatives of Stelman Leasing and Charter Express, appellee began to unload the cheese from his truck, using the equipment that appellant had provided to him for that purpose. Appellant's shipping clerk told appellee where to put the cheese when it was unloaded. Appellee was also told to separate any damaged cheese, to reload that damaged cheese onto the truck, and to return it to Charter Express as goods which had been rejected by appellant. While reloading the damaged and rejected cheese back onto his truck, appellee injured his foot on a piece of appellant's equipment that he was using.

Appellee brought this suit, alleging that the injury to his foot had been caused by appellant's negligence in providing defective equipment for him to use in unloading and reloading his truck. Among the defenses raised in appellant's answer was the assertion that, because appellee was its "borrowed servant" at the time of his injury, workers' compensation was his only remedy and OCGA § 34-9-11 barred this tort action. Cross-motions for partial summary judgment as to appellant's "borrowed servant" defense were filed. After a hearing, the trial court granted partial summary judgment in favor of appellee and denied appellant's motion for summary judgment as to this issue. Appellant appeals from the trial court's order granting appellee partial summary judgment as to the "borrowed servant" defense.

"[I]n order for an employee to be a borrowed employee, the evidence must show that '(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.' [Cit.]" Six Flags Over Ga. v. Hill, 247 Ga. 375, 377(1), 276 S.E.2d 572 (1981). All of these elements must exist and the element of the right to control relates specifically to the occasion when the injury occurred. Bosch v. Perry, 169 Ga.App. 28(1), 311 S.E.2d 481 (1983). There is apparently no dispute that, notwithstanding his status as a general employee of Stelman Leasing, appellee was a borrowed servant as to Charter Express with regard to the delivery of the cheese to appellant's warehouse. Charter Express had, to the apparent exclusion of Stelman Leasing, complete control and direction over appellee's delivery of the cheese and the exclusive right to discharge him from the performance of that duty. Thus, the issue to be resolved is whether, in unloading and reloading the cheese, appellee left the control and direction that Charter Express exercised over his delivery of the cheese so as to become the borrowed servant of appellant.

"The responsibility of a carrier shall commence with the delivery of the goods to him or to his agent or at the place where the carrier is accustomed or agrees to receive them. The carrier's responsibility shall cease with the delivery of the goods at destination according to the direction of the person sending the goods or according to the custom of the trade." OCGA § 46-9-45. When construed most strongly in favor of appellant, as the non-moving party, the evidence as to the right of control over appellee, in the sense of the authority to direct that he unload and reload the goods, shows the following: Appellee refused to comply with appellant's direction to unload his truck. Only after telephoning those whom he considered to be authorized to give him orders and after being assured that he would be paid for doing so, did appellee undertake the assignment. Appellee was subjected to the same treatment and instructions as any other truck driver who was sent to deliver...