Merry Bros. Brick & Tile Co. v. Jackson, 44581

• Decision Date: 07 November 1969
• Docket Number: No. 44581,No. 1,44581,1
• Citation: 171 S.E.2d 924,120 Ga.App. 716
• Parties: MERRY BROTHERS BRICK & TILE COMPANY v. Ladd JACKSON
• Court: Georgia Court of Appeals

Page 924

171 S.E.2d 924

120 Ga.App. 716

MERRY BROTHERS BRICK & TILE COMPANY v. Ladd JACKSON.

No. 44581.

Court of Appeals of Georgia, Division No. 1.

Nov. 7, 1969.

Rehearing Denied Nov. 25, 1969.

Certiorari Denied Jan. 8, 1970.

Syllabus by the Court

Under the evidence adduced and the law applicable thereto, the trial court did not err in refusing to grant summary judgment for the defendant herein.

Fulcher, Fulcher, Hagler, Harper & Reed, N. William Pettys, Jr., Augusta, for appellant.

Sanders, Hester, Holley, Ashmore & Boozer, Richard A. Slaby, Augusta, for appellee.

PANNELL, Judge.

Ladd Jackson, plaintiff appellee, brought his complaint against the Merry Brothers Brick & Tile Company, defendant appellant, in the Superior Court of Richmond County, Georgia, seeking recovery for injuries sustained when an employee of the appellant attempted to move a brick unloading machine, which was on a trailer driven by the appellee, an employee of Riverside Motor Lines, Inc. The defendant's motion for summary judgment was overruled and it filed its appeal to this court. Merry Brothers Brick & Tile Company hereinafter will be referred to as Merry, and Riverside Motor Lines, Inc., as Riverside, for the purpose of brevity. Merry was a manufacturer of bricks and Riverside operated a truck line and entered into a contract with Merry to haul and deliver brick to persons designated by Merry. The contract obligated Riverside to 'accept, at designated shipping points, truck load quantities of clay products on its trucks and to deliver the same to such persons and places as may be designated by shipper.' Riverside was an independent contractor, furnishing, maintaining and operating its own vehicles and hiring and paying wages of its own employees. Jackson, the plaintiff appellee, was a truck driver for Riverside and regularly went to one of the Merry plants each working day of the year to receive a load of brick for transportation. He regularly moved an unloading machine to the rear of the truck he drove and the unloader had to be moved to the rear of the truck so that the truck could be loaded with brick. Officers and supervisory personnel of both Riverside and Merry testified that Jackson had the duty of preparing the truck to accept loads of brick and that it was his duty to move the unloading machine to the rear of the truck, although Jackson testified no one at Riverside informed him of his duties; that Joe Lewis Jones, an employee of Merry, had the duty of operating a fork lift truck primarily for the moving of brick from the yard to inventory and secondarily helping to load brick on the Riverside trucks. The unloading machine was what was called an overhead loader and ran on a track on each side of the truck. It was operated by a gasoline motor and this motor had to be cranked and in operation in order to move the unloading machine from the front of the truck to the rear so that the truck could be loaded with brick. Jackson had, on infrequent occasions, requested an employee to move the unloader to the rear with a fork lift truck when he could not start the gasoline engine, and he had seen other truck drivers ask and obtain similar assistance from Merry employees in the past. It was known by Merry management that Merry employees had on occasions assisted Riverside drivers in readying the Riverside trucks for the loading of brick by the employees of Merry. Jackson testified that no one at Riverside had ever informed him of his duties. On the occasion in question, Jackson was unable to get the gasoline motor started and requested the assistance of Jones, who drove his fork lift onto the truck and was using it for the purpose of moving the unloader to the rear of the truck when it left the tracks and fell to the ground, carrying Jackson with it, causing the injuries for which he seeks damages. Jones had never before assisted in moving one of the unloading machines. Jones stated that at the time he was moving the unloading machine he was given detailed instructions continually about the operation and how to perform it by Jackson. Jackson's testimony is that he said nothing to Jones after requesting him to move the unloading machine. There was some evidence that the rails on which the unloading machine ran were bent and that this may have caused the derailing rather than any negligent act of Jones and that this defect was known to Jackson and he did not warn Jones. Appellant, in its argument, contends that the evidence demands a finding that Jones was a servant of Jackson, on loan, so to speak, and that if any negligence of Jones caused the injuries to Jackson, he was a servant of Jackson at the time, rather than a servant of Merry. The appellee contends that because of the 'custom' of the Merry employees, with knowledge on the part of Merry, to aid the Riverside truck drivers in moving the unloaders when assistance was requested by the employees of Riverside extended the express scope of employment of Merry's employees, and that the activities of Merry employees in so assisting under the circumstances was within the scope of...