Red Top Cab Co., Inc. v. Hyder
| Decision Date | 12 February 1974 |
| Docket Number | No. 48885,No. 1,48885,1 |
| Citation | 204 S.E.2d 814,130 Ga.App. 870 |
| Parties | RED TOP CAB COMPANY, INC. v. Richard B. HYDER |
| Court | Georgia Court of Appeals |
Martin, Skinner, Adkins & Horton, Russell L. Adkins, Jr., Decatur, for appellant.
Lewis, Lewis, Spearman & Bynum, George L. Pope, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
The appellee filed a claim against the appellant for damages which the appellee sustained as the result of an automobile collision. The petition alleged that James Wilson negligently drove an automobile into the rear of the appellee's automobile and that Wilson was an employee of the appellant at the time of the collision and that Wilson was acting within the scope of his employment. The appellant filed a motion for summary judgment which was denied and the case is here for review. Held:
The appellant filed an affidavit which stated that Wilson was in effect an independent contractor. While the affidavit stated that the appellant owned the automobile Wilson was driving at the time of the collision, it further stated that the automobile was leased for a specific amount per day to Wilson and that the appellant had no control over Wilson's operation of the automobile. The affidavit also stated that while the appellant relayed telephone messages to the drivers of the taxies when someone called for a taxi, it had no control as to whether the driver of the taxi picked up the person who called in. The affidavit also stated that appellant did not participate in the profits or losses of the taxi drivers.
Under that which was held in Clark v. Veterans Transportation,113 Ga.App. 531, 148 S.E.2d 921, we are constrained to hold that the overruling of the appellant's motion for a summary judgment was error. In the Clark case, it was held the fact that the cab in which the plaintiff was riding had 'Checker Cab' lettered on it was not sufficient to prove that the plaintiff owned the taxi nor that the driver was the defendant's agent. In the present case the appellant admitted ownership of the taxi, but there was uncontradicted evidence that the vehicle was leased by the day to Wilson and that the appellant had no control over its operation. While it is true that proof that the appellant owned the taxi would have raised a presumption that Wilson was its agent, however, the uncontradicted evidence that the taxi was leased to Wilson rebutted the inference which disappeared upon proof of the uncontradicted evidence to the contrary.
"The general theory of these cases is that the presumption or the inference is not evidence, but serves in the place of evidence until evidence to the contrary is adduced. It is created merely for purposes of administrative convenience, to be resorted to in the absence of evidence, to require the party most likely to have in his possession or knowledge the evidence of the real facts in issue, to produce such evidence in the first instance; that when such evidence is produced as to the real facts, there remains no warrant to keep the presumption in the case and that in such case...
To continue reading
Request your trial
-
Rapid Group, Inc. v. Yellow Cab of Columbus, A01A1363.
...means of the execution of the work"). See also Hand v. Checker Cab Co., 216 Ga. App. 116, 453 S.E.2d 138 (1995); Red Top Cab Co. v. Hyder, 130 Ga.App. 870, 204 S.E.2d 814 (1974) (company had no control over operation of cab); English v. Yellow Cab Co., 119 Ga.App. 828, 168 S.E.2d 920 (1969)......
-
Reliance Ins. Co. v. Bridges, s. 66404
...between the owner and driver if there is any evidence to the contrary. This statement of the law was derived from Red Top Cab Co. v. Hyder, 130 Ga.App. 870, 204 S.E.2d 814, and also has no relevance to the facts here in dispute, pertaining rather to a situation where the owner of the leased......
-
American Ass'n of Cab Companies v. Parham
...this case is controlled by precedents such as Red Top Cab Co. v. Hyder,32 Hand v. Checker Cab Co.,33 and Metro Taxi v. Brackett.34 In Red Top Cab Co., evidence of the cab company's ownership of the taxicab was held insufficient to create a jury issue where the uncontradicted evidence showed......
-
Loudermilk Enterprises, Inc. v. Hurtig
...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......