Graham v. Cleveland

• Decision Date: 23 November 1938
• Docket Number: No. 26952.,26952.
• Citation: 200 S.E. 184,58 Ga.App. 810
• Parties: GRAHAM. v. CLEVELAND et al.
• Court: Georgia Court of Appeals

58 Ga.App. 810

200 S.E. 184

GRAHAM.

v.CLEVELAND et al.

No. 26952.

Court of Appeals of Georgia,

Division No. 1.

Nov. 23, 1938.

Syllabus by the Court.

1. Where the owner of an automobile delivers his car to the agent of another, whois engaged in the operation of a parking lot for automobiles for hire, for the purpose of parking the ear in said lot a short distance away, such agent does not become the servant of both the owner of the car and the owner and operator of such parking lot so as to make them jointly liable for his negligent operation of said car.

2. Nor, in such case, does the petition set out a joint cause of action against such defendants by reason of an allegation that both of said defendants "knew or could have known" that said agent was a reckless and incompetent driver, but nevertheless permitted and directed him to operate the car.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action for personal injuries sustained by reason of alleged negligent operation of automobile by Sam Graham against A. R. Cleveland and others. To review a judgment dismissing the action as to defendant A. R. Cleveland, plaintiff brings error.

Affirmed.

G. Seals Aiken, of Atlanta, for plaintiff in error.

Neely, Marshall & Greene, W. Neal Baird, and Marvin G. Russell, all of Atlanta, for defendants in error.

GUERRY, Judge.

Sam Graham, according to his petition, sustained personal injuries by reason of the negligent operation of an automobile belonging to A. R. Cleveland, by Paul Wilson. He seeks compensatory damages against Cleveland, Wilson and Swann Co. Inc. The petition alleges that Swann Co., Inc., owned and operated a parking lot for the parking of automobiles for hire and that it employed the defendant Wilson on said lot in the operation of said business; that, on the day in question, Cleveland delivered his car to said Paul Wilson across the street from said parking lot for the purpose of parking the same in the parking lot operated by the defendant, Swann Co., Inc.; and that Wilson was operating said car at the time of the injury to plaintiff "as the agent, servant, chauffeur, and driver of the other defendants herein named, within the scope of his authority and in the business of said other-named defendants, with their knowledge and consent, at their direction and command." The judge sustained certain demurrers to the petition and passed an order requiring the plaintiff to amend his petition in named particulars, in default of which the case should stand dismissed. The plaintiff refused to amend and excepted to the dismissal of his petition.

1. As a general rule, conceding the negligence of the operator of an automobile, the owner thereof, when not riding in the car, is not liable for injuries proximately resulting from such negligence, merely because he is the owner of the vehicle. Gillespie v. Mullally, 30 Ga.App. 118, 117 S.E. 98; Wooley v. Doby, 19 Ga.App. 797, 92 S.E. 295; Lafitte v. Schunamann, 19 Ga.App. 799, 92 S.E. 295; Lewis v. Amorous, 3 Ga.App. 50, 59 S.E. 338; Mclntire v. Hartfelder-Garbutt Co., 9 Ga.App. 327, 71 S.E. 492; Wilson v. Quick-Tire Service, 32 Ga.App. 310, 123 S.E. 733; Reddy-Waldhauer Maffett Co. v. Spivey, 53 Ga.App. 117, 185 S.E. 147. Nor, as a general rule, is the owner liable for the negligence of the operator of his automobile merely because he consented, expressly or impliedly, to its operation by such person. Dougherty v. Woodward, 21 Ga.App. 427, 94 S.E. 636; Eason v. Joy Floral Co., 34 Ga.App. 501, 130 S.E. 352; Fielder v. Davison, 139 Ga. 509, 77 S.E. 618; Simril v. Davis, 42 Ga.App. 277, 155 S.E, 790. Subject to only one exception, which we will hereinafter note, the relationship of master and servant must exist between the owner and the operator of the car in order to render the owner liable for the negligent conduct of such operator. Rape v. Barker, 25 Ga.App. 362, 103 S.E. 171; Lewis v. Amorous, supra; Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167. In the present case it is alleged that Paul Wilson, the operator of the automobile at the time of the injuries to plaintiff, was the servant of the owner and defendant, A. R. Cleveland, and that in so operating the same he was acting within the scope of his employment. General allegations of agency are usually deemed sufficient. Yellow Cab Co. v. General Lumber Co., 35 Ga.App. 620 (1), 134 S.E. 190, and cit.; Fireman's Fund Insurance Co. v. Davis, 42 Ga.App. 49, 56, 155 S.E. 105; Lewis v. Amorous, supra. However, construing the pleadings most strongly against the plaintiff, these allegations of agency are inconsistent with, and must yield on demurrer to, other specific allegations of the petition.

The petition further alleges that Swann Co., Inc., owned and operated a parking lot for automobiles for hire, and that Paul Wilson was employed as its agent "and servant in the operation of this business. Thus we have it from the express allegations of the petition that Paul Wilson was in the employ of the defendant, Swann Co., Inc. It does not appear from the allegations of the petition that the defendant Cleveland was in any material way connected with Swann Co., Inc., or that he had any interest in or control over the operation of its business, except that on the occasion in question he desired to have his car parked in their parking lot. It is true that a person may be the servant of two or more persons, and that a general servant of one may become, under certain circumstances, the special servant of another in the performance of a particular piece of work (Brown v. Smith & Kelly, 86 Ga. 274, 12 S.E. 411, 22 Am.St.Rep. 456; Greenberg & Bond Co. v. Yarbrough, 26 Ga.App. 544, 106 S.E. 624; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480), but the allegations of the present petition negative, as a matter of law, the idea that Wilson was the servant of both Swann Co., Inc., and Cleveland, or even that he was the special servant of Cleveland in the operation of his car at the time of the injury to the plaintiff. Swann Co., Inc., and Cleveland were not joint owners or operators of the parking lot and had not jointly employed Wilson to engage in a common undertaking. Wilson was actually employed by Swann Co., Inc., and, according to the allegations of the petition, was, in receiving possession of the automobile from Cleveland, and in the operation of the same for the purpose of placing it in the parking lot, acting within the scope of his employment. This being true, the allegation that he was the servant of Cleveland, and as such acting within the scope of his employment, presents a plain legal non sequitur. The mere fact that a servant is, at the time of an injury, performing work beneficial to a third person, does not render him the servant of such third person and make such third person hereby responsible for his negligent acts. Postell v. Brunswick & Western R. Co., 112 Ga. 602, 37 S.E. 869; Henderson v. Nolting First Mortgage Corporation, 184 Ga. 724 (3), 740, 193 S.E. 347, 114 A.L.R. 1022; Albert v. Hudson, 49 Ga.App. 636, 176 S.E. 659. Therefore, the fact that the operation of the car by Wilson for the purpose of parking it was beneficial to Cleveland, the owner, did not render Wilson his servant.

While it is impossible to lay down any all-inclusive principle, intended as a criterion to determine, in every case, whether the relationship of master and servant exists, it is generally stated that "In actions at common law to recover damages alleged to have been caused by the servant of the defendant, the criterion by which to determine whether the relation existed as alleged is to ascertain whether, at the time of the injury, the alleged servant was subject to the defendant's orders and control and was' liable to be discharged by him for disobedience to orders or for misconduct." United States Fidelity & Guaranty Co. v. Stapleton, 37 Ga.App. 707, 141 S.E. 506, 508; Bibb Mfg. Co. v. Souther, 52 Ga.App. 722, 184 S.E. 421. In briefer form, this test was stated by Judge Taft as follows: "The question is one of agency. The result is determined by the answer to the further questions, whose work was the servant doing? and, under whose control was he doing it?" Byrne v. Kansas City, F. S. & M. R. Co., 6 Cir., 61 F. 605, 607, 24 L.R.A. 693.

Wilson, in operating Cleveland's car for the purpose of placing it in the parking lot, was performing duties imposed upon him by reason of his employment by Swann Co., Inc. This follows from the allegation of the petition that he was acting within the scope of his employment as its agent and servant. Presumptively, therefore, he was subject to the orders and control of Swann Co., Inc. It is true that Cleveland directed Wilson to operate the car for the purpose of placing it in the parking lot, and that h...