Mitchell v. Burden Bros., Inc., 46970

• Decision Date: 13 April 1972
• Docket Number: No. 1,No. 46970,46970,1
• Citation: 189 S.E.2d 909,126 Ga.App. 75
• Parties: Robert L. MITCHELL v. BURDEN BROTHERS, INC
• Court: Georgia Court of Appeals

Page 909

189 S.E.2d 909

126 Ga.App. 75

Robert L. MITCHELL v. BURDEN BROTHERS, INC.

No. 46970.

Court of Appeals of Georgia, Division No. 1.

April 13, 1972.

Syllabus by the Court

1. Defendant having failed to carry its burden of establishing that there is no genuine issue as to any material fact and that it is entitled as a matter of law to summary judgment on the basis that its allegedly negligent servant did not remain its servant when supplied as the operator of a machine it rented to a third person, the trial court erred in granting its motion for summary judgment.

2. In view of the above ruling, it is unnecessary to determine whether, prior to the hearing on the motion for summary judgment, defendant had been properly put on notice of a claim of direct negligence.

On October 27, 1966, Burden Brothers, Inc. and the Frank A. Player Company were subcontractors performing different phases of the same construction job. During the day it became necessary for Player, on its phase of the work, to dig a trench so that a drain pipe could be connected to a main sewer line which had already been laid. Player had no heavy equipment suitable for the trenching operation and, since it was known that Burden Brothers had backhoes and operators working on its phase, it arranged to rent a backhoe together with an operator from Burden Brothers to commence work sometime after the normal quitting time. Accordingly Burden Brothers sent its employee, Doyle Sharp, with a backhoe to Player's job site at approximately 4:30 in the afternoon, and upon arrival Sharp was told where to dig by a foreman of Player's. Sharp requested that he have someone help him spot for the pipe which had already been laid so that he would not inadvertently damage it while digging, and in response the foreman assigned Robert Mitchell, a Player employee, the duty of 'flagging' or watching for the backhoe operator. The foreman left, and while Sharp was operating the backhoe and Mitchell was watching for the covered pipe, Mitchell was knocked into a cement pit by the bucket or boom of the backhoe. Sharp's wages on this occasion were paid by Burden Brothers, who in turn billed Player, apparently at an hourly rate, for rental of the backhoe and operator.

Mitchell brought suit against Sharp and Burden Brothers, alleging that Sharp, acting as servant for Burden Brothers, negligently injured him. Burden Brothers moved for summary judgment, attaching a brief in which it was contended that Sharp was not acting as its servant but was lent by Burden Brothers to Player so as to come under the 'borrowed servant' rule. The trial court granted summary judgment for Burden Brothers, and plaintiff Mitchell appeals.

Neely, Freeman & Hawkins, Andrew J. Hamilton, Atlanta, for appellant.

Hurt, Hill & Richardson, James C. Hill, W. Seaborn Jones, Atlanta, for appellee.

EBERHARDT, Judge.

1. We reverse. 'If the bailor sends his own agents with the thing bailed, as a driver for his horse, then the hirer is bound, either to the bailor or to third persons, only for the consequences of his own directions and for gross neglect.' Code § 12-203. 'It is generally held that where an owner of a motor vehicle hires it, together with the driver, to another, the latter having no supervision or control of the servant's mechanical operation thereof, and no right to discharge the driver and take over the operation of the vehicle himself or put it in the hands of another to operate, the owner of the vehicle who employs the driver, rather than the hirer, is responsible for the driver's negligence.' Ellison v. Evans, 85 Ga.App. 292, 296, 69 S.E.2d 94, 97. Accord: Atlantic Coach Co. v. Curtis, 42 Ga.App. 639(1), 157 S.E. 344; Spaulding Oil Mill, Inc. v. Mayes, 48 Ga.App. 613, 172 S.E. 734; Albert v. Hudson, 49 Ga.App. 636(1), 176 S.E. 659; Brown v. Georgia Kaolin Co., 60 Ga.App. 347(1), 4 S.E.2d 100; Brett v. Thiele Kaolin Co., 86 Ga.App. 506(1) 71 S.E.2d 687; Harvey v. C. W. Matthews Contr. Co., 114 Ga.App. 866(3), 152 S.E.2d 809; Cooper v. Plott, 121 Ga.App. 488, 174 S.E.2d 446 and 226 Ga. 647, 177 S.E.2d 82. See also Bibb Mfg. Co. v. Martin, 53 Ga.App. 137, 185 S.E. 137; Wallace v. Price, 55 Ga.App. 783, 190 S.E. 273; National Trailer Convoy, Inc. v. Undercofler, 109 Ga.App. 703, 709, 137 S.E.2d 328; Hartford Acc. & Ind. Co. v. Parsley, 113 Ga.App. 830, 149 S.E.2d 848. 'Where the owner of an automobile truck hires it, together with his servant who operates it, to another person, to be paid for at so much an hour, for use in the hauling of gravel for the latter, and notwithstanding the work is performed under the direction and supervision of the person to whom the truck and the servant are hired and this person directs the servant as to what gravel to haul, where to haul it, and when...