Greenberg & Bond Co v. Yarbrough

• Decision Date: 26 March 1921
• Docket Number: (No. 11774.)
• Citation: 26 Ga.App. 544,106 S.E. 624
• Court: Georgia Court of Appeals
• Parties: GREENBERG & BOND CO. v. YARBROUGH.

26 Ga.App. 544

106 S.E. 624

GREENBERG & BOND CO.

v.YARBROUGH.

(No. 11774.)

Court of Appeals of Georgia, Division No. 2.

March 26, 1921.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; John B. Hutcheson, Judge.

Action by Mrs. L. T. Yarbrough against the Greenberg & Bond Company. Judgment for plaintiff, and defendant brings error. Affirmed.

J. L. Anderson and Westmoreland & Smith, all of Atlanta, for plaintiff in error.

Hewlett & Dennis, of Atlanta, for defendant in error.

HILL, J. Greenberg & Bond Company was employed by two brothers to conduct the funeral of their mother, to furnish the coffin and robes and automobiles, and in general to see that the funeral was properly conducted. Greenberg & Bond Company did not itself own automobiles but was in the habit of hiring them, in connection with its business, from the Smith Taxicab Company and others. There is some conflict in the evidence on the question as to whether the automobiles used in the funeral were engaged by Greenberg & Bond Company at the request and as the agent of the two brothers when they made the contract with the former for the funeral services; Greenberg & Bond Company insisting that these automobiles were hired by it as agent of the brothers, who had instructed it to do so, and this was all well known by them when the contract was made as it had ordered the automobiles at their request and while they were in their offices arranging for the funeral. The two brothers, on the contrary, testified that they knew nothing whatever about the automobiles ordered by the Greenberg & Bond Company, or that it had hired them from other parties, and that they had no knowledge whatever on the subject, and had never heard of the Smith Taxicab Company furnishing automobiles to Greenberg & Bond Company until some time after the funeral. The plaintiff below was a relative of the deceased mother and a sister of the two brothers who had made the contract for the funeral services, and she occupied one of the automobiles to the cemetery, and from the cemetery after the burial services were completed. While she was in the automobile, in company with several others, on the way back from the funeral, she was injured by the negligent driving of the chauffeur, who negligently ran into a telephone pole on the side of the road while he was exceeding the statutory speed limit. The verdict was for the plaintiff, and case is before this court on exceptions to the overruling of the defendant's motion for a new trial. The controlling question is whether, under the evidence, the driver of the automobile was the servant of Greenberg & Bond Company at the time of the injury caused by his negligence, or whether he was the servant of the Smith Taxicab Company, who had furnished the automobile and the chauffeur to the undertakers for the funeral in question. The motion for a new trial contains several specific grounds, but in the view we take of the case they are not material, for the case turns upon the question above stated: Who was the master of the chauffeur at the time of the injury? The trial judge submitted this question, under instructions, to be determined by the jury, and the question is raised by the plaintiff in error as to the soundness of these instructions, which will be considered later in this opinion.

It is well established that—

"The fact that an employee is the general servant of one employer does not, as matter of law, prevent him from becoming the particular servant of another, who may become liable for his acts. And it is true as a general proposition that when one person lends his servant to another for a particular employment (or hires him), the servant, for anything done in that particular employment, must be dealt with asthe servant of the man to whom he is lent (or hired), although he remains the general servant of the person who lent him (or hired him)." 18 R. C. L. 784.

Wood, in his work on Master and Servant, § 317, quoted with approval by the Supreme Court of this state in Brown v. Smith & Kelly, 86 Ga. 277, 12 S. E. 411, 22 Am. St. Rep. 456, says:

"The real test by which to determine whether a person is acting as the servant of another is to ascertain whether at the time when the injury was inflicted he was subject to such person's orders and control, and was liable to be discharged by him for disobedience of orders or misconduct."

Labatt, in his treatise on the subject of Master and Servant (2d Ed.) § 52, says:

"One person may be taken to have been the servant of another in respect of a given transaction, although he did not occupy that position for all purposes. In order to establish the relationship, it is merely necessary to show that he was a servant as regards the particular piece of work in which he was engaged at the time when he sustained or inflicted the injury complained of. * * * The special master is alone liable to third persons for injuries caused by such wrongful acts as the special servant may commit in the course of his employment."

And in Shearman & Redfield on Negligence, § 162, it is said:

"If the hirer is vested for the time with the exclusive right to discharge the servants and employ others, he alone is responsible for their defaults."

In the case of Byrne v. K. C, P. S. & M. R. Co., 61 Fed. 607, 9 C. C. A. 669, 24 L. R. A. 696, Judge Taft uses the following language:

"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?"

In that case the railway company rented its engine to a bridge company for use in the performance of certain services, the bridge company paying the railway company $10 a day for its use and the expense of the fuel and supplies used in the running of the engine. In the conduct of the work done by the engine it was under the control of the superintendent of the bridge company. As this superintendent expressed it, "The bridge company rented the crew along with the engine from the railway company." The engine, while being thus operated, ran over and killed Nason, whose administrator, Byrne, brought suit against the railway company for damages, Judge Taft, speaking for the United States Circuit Court of Appeals, said:

"On this state of facts we are clearly of the opinion that the court was right in holding that the railway company was not responsible for the acts of the engineer and fireman in running the engine which killed Nason. They were, it is true, general servants of the railway company, but at the time of the accident they were engaged in the work of the bridge company, were subject to the orders of the bridge company's officers, and in what they did or failed to do were...