Loudermilk Enterprises, Inc. v. Hurtig

• Decision Date: 04 October 1994
• Docket Number: No. A94A1295,A94A1295
• Citation: 449 S.E.2d 141,214 Ga.App. 746
• Parties: LOUDERMILK ENTERPRISES, INC. v. HURTIG.
• Court: Georgia Court of Appeals

Page 141

449 S.E.2d 141

214 Ga.App. 746

LOUDERMILK ENTERPRISES, INC. v. HURTIG.

No. A94A1295.

Court of Appeals of Georgia.

Oct. 4, 1994.

Parkerson & Shelfer, I.J. Parkerson, Decatur, for appellant.

Snellings & Ferguson, Stanley T. Snellings, Robert G. Aitkens, Atlanta, for appellee.

ANDREWS, Judge.

Hurtig sued Loudermilk Enterprises, Inc. d/b/a Buckhead Safety Cab ("Loudermilk"), claiming that the driver of a Buckhead Safety Cab negligently caused an automobile accident in which Hurtig was injured. Hurtig alleged that the driver of a Buckhead Safety Cab negligently pulled out in front of her car, causing her to swerve and collide with another vehicle, and that the taxicab driver drove away from the scene of the accident without stopping.

Hurtig claims Loudermilk is responsible for the damages she incurred in the accident because: (1) the taxicab driver was employed as a servant of Loudermilk, which is responsible for the damages caused by its servant on the basis of respondeat superior, or (2) if the taxicab driver was employed as an independent contractor rather than a Loudermilk servant, Loudermilk is liable for the negligence of its independent contractor driver pursuant to OCGA § 51-2-5(4) because the driver wrongfully left the scene of the accident in violation of a duty to stop imposed by OCGA § 40-6-270. Loudermilk claims that, even if there was evidence the accident was caused by one of its drivers operating a Buckhead Safety Cab, it is not liable because the driver was an independent contractor, not a servant of Loudermilk, and Loudermilk is not responsible for the negligent conduct of its driver employed as an independent contractor.

A jury rendered a verdict against Loudermilk for damages in the amount of $74,046.61. Loudermilk appeals, claiming the trial court erred by denying its motion for a directed verdict made on the basis that the evidence showed the driver was an independent contractor and that it was not responsible for the driver's negligent conduct.

The original common law rule that an employer is not liable for the torts of an independent contractor is codified in Georgia in OCGA § 51-2-4 which provides: "An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer." Peachtree-Cain Co. v. McBee, 254 Ga. 91, 327 S.E.2d 188 (1985). "The reason for the rule is that since the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor's own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk...." (Citations and punctuation omitted.) Id. at 91, 327 S.E.2d 188. "The chief test to be applied in determining whether a person is employed as a servant or as an independent contractor has long been and continues to be whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract. With [respect] to the 'independent business' requirement set forth in the code section, the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer's alter ego." (Citations and punctuation omitted.) Slater v. Canal Wood Corp. of Augusta, 178 Ga.App. 877, 878, 345 S.E.2d 71 (1986).

Evidence was presented by an eyewitness to the accident that a Buckhead Safety Cab negligently caused the accident at issue and that the taxicab driver drove away from the scene of the accident without stopping. Neither the specific taxicab involved nor the identity of the taxicab driver could be determined after the accident. Other evidence showed that every Buckhead Safety Cab driver signed a written agreement with Loudermilk providing that the driver's relationship with Loudermilk was that of an independent contractor. Some drivers owned their own taxicabs and others leased a taxicab owned and maintained by Loudermilk. In either case, the driver paid a fixed fee to Loudermilk, which provided communications services by taking telephone calls from taxicab customers and relaying the calls by radio to the taxicab drivers. The taxicab drivers retained the fares they collected from customers and did not share their profits or losses with Loudermilk. The president of Loudermilk testified that the time, manner and method of operating the taxicabs was vested with the individual drivers, who were not required to work and were not restricted to any particular time or location.

"Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control." (Citations and punctuation omitted.) McGuire v. Ford Motor Credit Co., 162 Ga.App. 312, 313, 290 S.E.2d 487 (1982). Moreover, because Loudermilk denied that it had any agency relationship with its taxicab drivers, Hurtig was required to come forward with evidence sufficient to sustain a verdict establishing such a relationship. Bennett v. Miller, 188 Ga.App. 72, 74, 371 S.E.2d 903 (1988); Johnson v. City Wide Cab, 205 Ga.App. 502, 504, 422 S.E.2d 912 (1992).

Hurtig produced no evidence sufficient to support a verdict that there was an employer-servant relationship between Loudermilk and any of its taxicab drivers who could have caused the accident. Standing alone, the testimony identifying the vehicle which caused the accident as a Buckhead Safety Cab was insufficient to raise an inference that there was an employer-servant relationship between Loudermilk and the driver of the taxicab. Compare Harper v. Samples, 164 Ga.App. 511, 512, 298 S.E.2d 29 (1982). Evidence of lettering on the side of the vehicle reading "Buckhead Safety Cab" and evidence that the drivers of Buckhead Safety Cabs would provide a receipt for charges bearing the company name was also insufficient to raise a presumption of an agency relationship between the drivers and Loudermilk. Aetna Cas. etc. Co. v. Malcom, 149 Ga.App. 754, 755, 256 S.E.2d 117 (1979). "Generally[,] there are two circumstances to be proven in order to raise the necessary inference that the vehicle was being operated in the master's business and within the scope of the employer's employment, viz., ownership of the vehicle by the master and that the driver was the owner's servant." Clark v. Atlanta Veterans Transp., 113 Ga.App. 531, 533-534, 148 S.E.2d 921 (1966). Even if there had been proof that the driver who caused the accident drove a Buckhead Safety Cab owned by Loudermilk, the evidence was insufficient in this case to show an agency relationship between the driver and Loudermilk because of uncontroverted evidence that, if the taxicab was owned by Loudermilk, it was leased to the driver, who retained control over its operation. Red Top Cab Co. v. Hyder, 130 Ga.App. 870, 204 S.E.2d 814 (1974); Brunson v. Valley Coaches, 173 Ga.App. 667, 668, 327 S.E.2d 758 (1985). Moreover, we find no evidence sufficient to support a claim that an implied or apparent agency existed between Loudermilk and its taxicab drivers. See Howard v. St. Paul Fire, etc., Ins. Co., 180 Ga.App. 802, 804, 350 S.E.2d 776 (1986); Jackson v. Braddy, 186 Ga.App. 284, 285, 367 S.E.2d 96 (1988).

There was no evidence that Loudermilk assumed control over any driver's operation of a taxicab. Evidence that Loudermilk criticized some drivers based on complaints received from customers and terminated some drivers for this reason is not the equivalent of assuming control over the means and method of the work. "It is well recognized that merely taking steps to see that the contractor carries out his agreement, by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable." (Citations and punctuation omitted.) Slater, supra at 881, 345 S.E.2d 71.

Hurtig contends that, even if the driver of the taxicab was an independent contractor, Loudermilk remained liable for the driver's negligence under an exception to the general rule that employers are not liable for the torts of an independent contractor. The exception relied upon by Hurtig is set forth in OCGA § 51-2-5(4) which provides that: "An employer is liable for the negligence of a contractor ... [i]f the wrongful act is [a] violation of a duty imposed by statute." Hurtig asserts that, since the taxicab driver wrongfully left the scene of the accident in violation of a duty to stop at the accident scene imposed by OCGA § 40-6-270, Loudermilk is liable for the negligence of its independent contractor driver.

In the first place, Hurtig's damage claim in this case arose from the driver's negligent operation of the taxicab just prior to the accident, not from the taxicab driver's violation of OCGA § 40-6-270 by leaving the scene after the accident occurred. Secondly, even if the negligence of the driver which caused the accident and resulting damages violated a statutory duty imposed by the applicable rules of the road, this was a statutory duty imposed on the driver, not on Loudermilk, so the exception set forth in OCGA § 51-2-5(4) does not apply. Atlantic, etc., R. Co. v. Kimberly, 87 Ga. 161, 167, 13 S.E. 277 (1891); Tanner v. USA Today, 179 Ga.App. 722, 723, 347 S.E.2d 690 (1986).

Under OCGA § 9-11-50(a), "[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed." On appeal, the standard of review of the trial court's denial of a motion for a directed verdict is the "any evidence" standard. F....