Montgomery Trucking Co., Inc. v. Black
| Decision Date | 05 October 1973 |
| Docket Number | No. 28093,28093 |
| Parties | MONTGOMERY TRUCKING COMPANY, INC. v. Lawrence Joe BLACK. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The Court of Appeals erroneously reversed the trial court's grant of summary judgment in favor of the hirer of a leased truck and driver, because pursuant to Code § 12-203 and the facts presented the hirer was entitled to judgment as a matter of law.
Powell, Goldstein, Frazer & Murphy, Stuart E. Eizenstat, Edward E. Dorsey, Atlanta, for appellant.
Ronald L. Davis, Cartersville, for appellee.
We granted certiorari in this case (Black v. Montgomery Trucking Company, 129 Ga.App. 36, 198 S.E.2d 378) in order to review the application by the Court of Appeals of the rule in bailments set forth in Code § 12-203 in conjunction with the 'borrowed servant' doctrine.
The facts here show that Lawrence Joe Black filed a complaint in the Superior Court of Clayton County against Montgomery Trucking Company alleging that he had sustained certain personal injuries as the result of a rear end collision between his pick-up truck and a 1966 Mack truck operated by an unnamed driver of the trucking company.
The trucking company in its answer denied having any direction or control over the 1966 Mack truck, or driver so as to impose liability under the doctrine of respondeat superior.
It filed a motion for summary judgment contending that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. For support it submitted a copy of an equipment lease contract and affidavits of Walter Patton, an officer of the trucking company.
This contract was executed on March 28, 1967, between Rudolph Zschiedrich, as contractor, and Montgomery Trucking Company, as carrier, signed by Walter Patton, Zschiedrich, the contractor, agreed to furnish a 1966 Mack tractor truck and driver to Montgomery Trucking Company. Paragraph VI recited that 'Contractor understands and agrees that the equipment that is the subject of this lease, as set forth above during the term of the lease, is under the complete control and direction of contractor, and not the carrier.'
Patton's affidavits stated in essential part that the trucking company paid for the leased truck by the tonnage of material carried by it; that Zschiedrich's employee, the driver, was paid either directly or indirectly by reimbursement by Zschiedrich; that under the lease contract the trucking company had no power to hire or fire the driver and put another in his place; that the trucking company maintained no control over the time, manner and method by which the driver performed his work, nor did it control his mechanical operation of the truck, the driver being responsible to the trucking company merely for a result; and that the trucking company leased some ten other independent trucks and drivers for a job on the Interstate 285 perimeter around Atlanta, Georgia, in addition to the truck and driver involved here which was leased for the same job.
The plaintiff Black filed an affidavit of Zschiedrich in which Zschiedrich denied giving directions to or having control over the driver of the leased truck. He further swore that the trucking company 'had complete control over the truck and driver at the time of the accident'; that he did not know the details of the work that the trucking company wanted to do; and that he 'simply leased the truck and driver to said trucking company for whatever use they so desired and directed consistent with our lease agreement.' (Emphasis supplied.)
After considering the evidence the trial court granted the motion for summary judgment in favor of the trucking company.
Upon appeal to the Court of Appeals, that court reversed. Black v. Montgomery Trucking Company, 129 Ga.App. 36, 198 S.E.2d 378, supra. In so doing the opinion states (p. 38, 198 S.E.2d p. 380): ...
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