Frankel v. Cone

• Decision Date: 06 February 1959
• Docket Number: No. 20309,20309
• Citation: 214 Ga. 733,107 S.E.2d 819
• Parties: Mrs. Pearl K. FRANKEL v. Mrs. Walter L. CONE.
• Court: Georgia Supreme Court

Page 819

107 S.E.2d 819

214 Ga. 733

Mrs. Pearl K. FRANKEL v. Mrs. Walter L. CONE.

No. 20309.

Supreme Court of Georgia.

Feb. 6, 1959.

Rehearing Denied March 6, 1959.

Syllabus by the Court.

1. Under the allegations of the petition, the driver of the automobile was acting within the scope of his employment as agent of his employer, the owner of a parking lot, and was driving the automobile with the consent of the owner and for the owner's benefit and not as her agent.

2. The act approved March 4, 1955 (Ga.L.1955, pp. 454, 455, as found in Code (Ann.) § 68-301), which makes the owner of a motor vehicle liable and responsible for the death or injuries to person or property resulting from negligence in the operation of such motor vehicle if such motor vehicle is being used in the promotion of the business of such owner of if such vehicle is being operated for the benefit of the owner, thereby making the owner liable even though the vehicle is being operated without his knowledge, express or implied, or against his express orders, and whether by a trespasser, irrespective of how careful or free from negligence he may be, is in violation of the due process clauses of the State and Federal Constitutions.

3. The act approved March 4, 1955 (Ga.L.1955, pp. 454, 455), as found in Code (Ann.) § 68-301, imposes liabilitly upon the owner of the motor vehicle in this case, where without the statute there would be no liability; and the owner is adversely affected thereby and is in position to challenge the constitutionality of the act.

This is a review of a judgment of the Superior Court of Fulton County, overruling general and special demurrers of the plaintiff in error, Mrs. Pearl K. Frankel, one of the defendants below, to the petition seeking recovery of damages for personal injuries.

The issue presented is whether this defendant, the owner of an automobile involved in an accident, is deprived of her property without due process of law in contravention of section 1 of the fourteenth amendment of the Constitution of the United States (Code, Ann., § 1-815), and paragraph 3 of section 1, article 1, of the Constitution of Georgia of 1945 (Code, Ann., § 2-103), and of equal protection of the law guaranteed to her by section 1 of the fourteenth amendment, supra, by the following act of the General Assembly approved March 4, 1955: 'Every owner of a motor vehicle operated upon the public highways, roads or streets on this State shall be liable and responsible for the death, or injuries to person or property resulting from negligence in the operation of such motor vehicle, if said motor vehicle is being used in the prosecution of the business of such owner or if said motor vehicle is being operated for the benefit of such owner.' Ga.L.1955, pp. 454-455 (Code, Ann. § 68-301).

Moise, Post & Gardner, R. Emerson Gardner, Albert G. Norman, Jr., J. William Gibson, Atlanta, for plaintiff in error.

James Mackay, Hamilton Lokey, Atlanta, Dan McConaughey, Decatur, for defendant in error.

McFarland & Cooper, Atlanta, for parties at interest not parties to record.

MOBLEY, Justice.

1. In her petition, the plaintiff seeks damages for personal injuries alleged to have been suffered by her when she was struck by an automobile owned by the defendant Frankel and driven by the defendant Hicks, an employee and servant acting within the scope of his employment of the defendant Day, who was the owner of a parking lot. The plaintiff alleges: 'That in the furtherance of his business as aforesaid, defendant L. M. Day authorized and directed his parking lot attendants to accompany certain customers to their destinations downtown in order to return the said customers' cars to defendant Day's lot for parking.

'That immediately before the collision as aforesaid, at the request of defendant Mrs. Pearl K. Frankel, defendant Arthur Lee Hicks had been directed by the party in charge of said parking lot, whose name is unknown to the plaintiff but is well known to the defendants, to accompany Mrs. Pearl K. Frankel in her Cadillac to her place of business and return her car to said parking lot. That defendant Hicks accompanied defendant Mrs. Frankel to her place of business at 112 Broad Street, S. W., Atlanta, Georgia, where defendant Mrs. Frankel turned her said Cadillac over to defendant Hicks for the purpose of returning it to Day's parking lot, with instructions to return for her later in the day. That defendant Hicks was in the process of delivering said Cadillac to said parking lot when petitioner was struck down as aforesaid.

'That at the time and place aforesaid, the Cadillac automobile was the property of defendant Mrs. Pearl K. Frankel and was being driven by defendant Arthur Lee Hicks at her express request, and * * * was being operated for the benefit of the said owner, defendant Mrs. Pearl K. Frankel.'

It is readily seen therefrom, and was so stated by counsel for the plaintiff in his oral argument, that the petition does not seek recovery from the owner of the car on the basis of principal and agent, nor does it allege facts showing that the driver was her agent acting within the acope of his employment. See Simmons v. Beatty, 61 Ga.App. 759, 7 S.E.2d 613; Shropshire v. Caylor, 94 Ga.App. 37(1), 93 S.E.2d 586, and cases cited. The petition clearly seeks recovery from the owner of the car upon the basis that the driver was driving her car with her consent and for her benefit. If the plaintiff is entitled to recovery, it is by reason of Code (Ann.) § 68-301.

2. While this court in McElroy v. McCord, 213 Ga. 695, 100 S.E.2d 880, held that a petition alleging personal injuries as a result of the negligent operation of the defendant's motor vehicle while it was being used in the prosecution of the defendant's business stated a cause of action as against general demurrer, there no attack was made upon the constitutionality of the act of 1955 (Ga.L.1955, pp. 454, 455 (Code, Ann., § 68-301).

Here, there is a valid attack upon the constitutionality of the act; and, in our opinion, the act clearly violates the due process clause of both the Federal and State Constitutions, for the reason that it makes the owner of a motor vehicle liable if the vehicle is being used in the prosecution of the business of or for the benefit of such owner, even though operated without notice to her or without her knowledge and without her consent, express or implied. To hold this statute constitutional, would be to hold a party liable for the negligent conduct of another, even though a trespasser were operating the vehicle against the express orders of the owner, and irrespective of how careful or free from negligence the owner was, the only condition being that it be operated for the benefit of the owner.

The ruling of this court in Lloyd Adams, Inc. v. Liberty Mutual Ins. Co., 190 Ga. 633, 641, 10 S.E.2d 46, 51, that, 'To allow any recovery on the basis stated by the statute would deprive the defendant of property without due process of law, would authorize a recovery without liability, and would compel payment without fault,' is equally applicable to this statute. We do not find, nor have counsel cited, any cases upholding the constitutionality of this or a similar statute. On the other hand, a similar statute was declared unconstitutional in the case of Daugherty v. Thomas, 174 Mich. 371, 140 N.W. 615, 45 L.R.A., N.S., 699....