Harper v. Brown

• Decision Date: 24 June 1970
• Docket Number: No. 45270,3,Nos. 1,2,45270,s. 1
• Citation: 122 Ga.App. 316,176 S.E.2d 621
• Parties: James L. HARPER et al. v. James F. BROWN
• Court: Georgia Court of Appeals

Page 621

176 S.E.2d 621

122 Ga.App. 316

James L. HARPER et al. v. James F. BROWN.

No. 45270.

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

June 24, 1970.

Rehearing Denied July 29, 1970.

Syllabus by the Court

1. (a) A master-servant relationship exists between a corporation and its president such that, although the corporate officer has the unrestricted right of use of a company vehicle, the corporation will not be liable for damages resulting from his negligence in its use where the use is not within the scope of employment but is on a purely personal mission.

(b) The corporate defendant is entitled to judgment notwithstanding the verdict. For this reason the only remaining defendant, a nonresident, is not subject to the jurisdiction of the court and the judgment against him must be set aside.

2. The general daytime speed limit for passenger automobiles on the highways of this State is 60 miles per hour. The 35 mile per hour speed limit in business and residential districts outside of corporate limits applies only when such lesser limit has been established according to law.

This action for damages arises out of a collision between an automobile driven by the plaintiff Brown who was engaged in making a left turn from a highway into the driveway of his home, and an automobile allegedly owned by Allied Chemical Company and operated by the defendant Harper which was in the left lane attempting to pass Brown's car at the time. The defendants appeal from the judgments of the trial court, after verdict, overruling their motions for new trial and for judgment notwithstanding the verdict.

Bennet, Gilbert, Gilbert, Whittle, Wallace E. Harrell, Brunswick, for appellant.

Alaimo, Taylor & Bishop, Anthony A. Alaimo, James A. Bishop, Brunswick, for appellee.

DEEN, Judge.

1. The defendant Harper was president of Southern Propane Company, a wholly owned subsidiary corporation of the defendant Allied Chemical Corp., and as such was furnished with the use of the automobile which he was driving at the time of the collision. The evidence is uncontradicted that on the Sunday in question he was engaged in driving a friend out to his farm for personal reasons, and in doing an errand for the friend, neither of which objectives had any relation to the business of either of the corporations. The general rule is as stated in Price v. Star Serv. & Petroleum Corp., 119 Ga.App. 171(1), 166 S.E.2d 593: 'When a servant is permitted by the master to use a vehicle for the servant's own pleasure or business, wholly disconnected from that of the master, and a third party is injured by the servant's negligent operation of it while on his own mission, the master cannot be held liable under the doctrine of respondeat superior. Operation of the master's vehicle by a servant with the master's knowledge, consent and permission but on a mission purely personal to the servant, places the servant in the same position as that of any borrower of a vehicle, and as to the use of the vehicle on the personal mission the relationship is that of bailor and bailee only.' A company is not chargeable with acts committed by its president in his individual capacity and for his personal benefit only. Hopkins v. City of Atlanta, 172 Ga. 254(2), 157 S.E. 473. And see Strickland v. Bank of Cartersville, 141 Ga. 565(4), 81 S.E. 886. It was held in Heath v. Atlanta Beer Distributing Co., 56 Ga.App. 494, 193 S.E. 73 that even though a tortfeasor is the owner and sole stockholder of the corporation, the corporation is not liable unless the tortfeasor is acting within the scope of his employment or in the line of business of the corporation at the time. Even though the company car was turned over to Harper as president without restrictions on his use, the rule of respondeat superior does not apply where the use was purely personal to Harper. See also Code § 105-108; McGuire v. Gem City Motors, D.C., 296 F.Supp. 541; Fulton Bag & Cotton Mills, v. Eudaly, 95 Ga.App. 644, 98 S.E.2d 235; Fielder v. Davison, 139 Ga. 509, 77 S.E. 618. Since the evidence demands a conclusion that Harper was on a purely personal mission at the time of the collision, the judgment against Allied Chemical Corp. is without evidence to support it.

2. The court charged: 'The laws of Georgia prohibit the operation of an automobile at a speed in excess of 35 miles per hour on a public highway in a residence district * * * If you find that Mr. Harper was driving his motor vehicle in excess of 35 miles per hour on a public highway of this State in a residence district, such conduct would amount to negligence as a matter of law.'

The evidence shows that there were houses along the road in this area and that it was not within a municipality. The only evidence as to speed limit came from a deputy sheriff who understood it to be 60 miles per hour. There was no evidence that any maximum speed sign appeared along the highway. Code Ann. § 68-1626(b) deals with speed limits, subsection (2) setting the 60 mph. daytime limit where no special hazard exists. Subsection (1) sets a limit of 35 mph. in any business or residence district. Speed zones are established by the State Highway Board as set out in Code Ann. § 68-1627, are posted by it in accordance with Code Ann. § 68-1610. As to the evidence necessary to prove that the speed limit has been reduced from 60 to 35 miles per hour, this court has held that testimony that it is so posted is prima facie probative of the fact of change under Code Ann. § 68-1610(c), but whether the speed limit has been so reduced depends upon whether action has been taken by a governing authority, and proper notice posted on the highway. See Hodges v. State, 100 Ga.App. 611(1), 112 S.E.2d 373 where it was held: 'To allow officers to arbitrarily decide this question would be an unlawful assumption of legislative powers.' Obviously, then, the issue should not be left after the event for a jury to decide, where official action has not been taken, whether it considers an unmarked area to have a speed limit of 35 rather than 60 miles per hour. See also Atlanta Metallic Casket Co. v. Hollingsworth, 104 Ga.App. 154, 161, 121 S.E.2d 388; Justice v. Bass, 114 Ga.App. 353, 358, 151 S.E.2d 511.

'A residential area is defined by statute. It is 'the territory contiguous to and including a highway not comprising a business district when the property on such highway for a distance of 300 feet or more is in the main improved with residences or residences and buildings in use for business: Provided, however, that when such territory is located outside the incorporated limits of a city or town, it is designated and marked as such by the Director of Public Safety.' Code Ann. § 68-1504(5)(b).' Heaton v. Smith, 121 Ga.App. 348, 174 S.E.2d 197. Where nothing in the record suggests that a reduced speed limit had in fact been effectuated at the place of the collision, it was error to so instruct the jury as to leave it free to find the defendant guilty of negligence per se if it was determined that he was traveling between 35 and 60 miles per hour in a 'residential district.'

3. The remaining enumerations of error are not passed upon. For the reasons set out in the first division of this opinion, the trial court erred in denying a judgment notwithstanding the verdict to the corporate defendant. This being true, the court has no jurisdiction over the nonresident defendant Harper, and the judgment against him must be set aside.

Judgment reversed.

BELL, C.J., JORDAN and HALL, P. JJ., and EBERHARDT, PANNELL, QUILLIAN and WHITMAN, JJ., concur.

EVANS, J., dissents.

EVANS, Judge (dissenting in part).

I concur with the majority opinion as to Division 2 and the judgment of reversal for reasons stated therein. Accordingly, I agree that the case should be sent back to the trial court for another trial because the court erred in charging the jury that 35 miles per hour is the maximum speed limit in a 'residential district' when the evidence fails to show that this residential district has been so marked and designated by the proper public authorities.

But I dissent from Division 1 of the majority opinion. The question is whether or not a corporation may supply to its president an automobile, to be used at any and all times by such president in his discretion, without let or hindrance, and without any restriction as to how and when and where he shall use it, and escape liability for its negligent use. None of the cases cited by the attorneys, nor by the majority opinion, involve facts similar to the case sub judice. Nor by diligent search have I been able to find such a case where the president of a corporation is given unlimited and unrestricted use of an automobile and injury results to another by reason of its use. The cases cited in the majority opinion are Hopkins v. City of Atlanta, 172 Ga. 254, 157 S.E. 473, supra; Strickland v. Bank of Cartersville, 141 Ga. 565, 81 S.E. 886, supra; Heath v. Atlanta Beer Distributing Co., 56 Ga.App. 494, 193 S.E. 73, supra; Fulton Bag & Cotton Mills v. Eudaly, 95 Ga.App. 644, 98 S.E.2d 235, supra; and Fielder v. Davison, 139 Ga. 509, 77 S.E. 618, supra. The first two cited cases (Hopkins and Strickland) involve actions for fraud by a president of a corporation, which is in no way similar to the case at bar. The third case (Heath) involves the wilful shooting of another by an officer of a corporation which likewise is not similar to the case at bar. The fourth case (Fulton Bag & Cotton Mills) does not involve a general officer, such as a president, of a corporation, but involves a 'traveling salesman,' and is therefore not in point; and the fifth case (Fielder) involves master and chauffeur, and is not in point. What difference is there between a corporation's furnishing an automobile to a mere agent such as a traveling salesman and the furnishing of an automobile without restriction to its president? The traveling salesman takes orders from the...