Reliance Ins. Co. v. Bridges, s. 66404

• Citation: 168 Ga.App. 874,311 S.E.2d 193
• Decision Date: 17 November 1983
• Docket Number: Nos. 66404,s. 66404
• Parties: , 49 A.L.R.4th 1047 RELIANCE INSURANCE COMPANY v. BRIDGES et al. AVANT TRUCKING COMPANY, INC. v. BRIDGES et al. BILL COX EXCAVATING COMPANY, INC. v. BRIDGES et al. QUEEN CITY CONSTRUCTORS, INC. v. BRIDGES et al. to 66407.
• Court: United States Court of Appeals (Georgia)

Page 193

311 S.E.2d 193

168 Ga.App. 874, 49 A.L.R.4th 1047

RELIANCE INSURANCE COMPANY v. BRIDGES et al.

AVANT TRUCKING COMPANY, INC. v. BRIDGES et al.

BILL COX EXCAVATING COMPANY, INC. v. BRIDGES et al.

QUEEN CITY CONSTRUCTORS, INC. v. BRIDGES et al.

Nos. 66404 to 66407.

Court of Appeals of Georgia.

Nov. 17, 1983.

Joseph H. Davis, Macon, for appellant in No. 66404.

Del Percilla, Jr., Thomas W. Malone, Albany, Carr G. Dodson, George N. Skene, Charles M. Stapleton, L. Zack Dozier, Jr. Robert F. Higgins, Jr., Macon, for appellees in No. 66404.

George N. Skene, Macon, for appellant in No. 66405.

Thomas W. Malone, Del Percilla, Jr., Albany, Robert F. Higgins, Jr., L. Zack Dozier, Jr., Charles M. Stapleton, Joseph H. Davis, Wallace Miller III, Hendley V. Napier, Carr G. Dodson, for appellees in No. 66405.

Wallace Miller III, Robert C. Norman, Jr., Carr G. Dodson, Macon, for appellant in No. 66406.

Del Percilla, Jr., Thomas W. Malone, Albany, Joseph H. Davis, George N. Skene, Charles M. Stapleton, L. Zack Dozier, Jr., Robert F. Higgins Jr., Macon, for appellees in No. 66406.

Charles M. Stapleton, Macon, for appellant in No. 66407.

Del Percilla, Jr., Thomas W. Malone, Albany, Carr G. Dodson, George N. Skene, Joseph H. Davis, L. Zack Dozier, Jr., Robert F. Higgins Jr., Macon, for appellees in No. 66407.

McMURRAY, Presiding Judge.

These appeals arise from a wrongful death action brought by the parents of a seven-year-old child who died from injuries sustained in a multiple vehicle collision on August 7, 1980. The events leading to the collision were as follows: Employees of Queen City Constructors, Inc. (Queen City) were laying cable along U.S. Highway 80, a two-lane road. Two employees were sent to pick up a "lowboy" tractor-trailer which was parked on the side of the highway and, in attempting to make a U-turn across the highway, caused the trailer to become stuck and block both lanes of traffic. While Lee, one of the Queen City employees, made preparations to remove the trailer, Newton, the other Queen City employee, attempted to stop traffic traveling in an easterly direction on Highway 80. However, no flags, signs, flashers or other warning devices were deployed either east or west of the stuck trailer. Seven-year-old Tracey Bridges was a passenger in the cab of a pickup truck proceeding in an easterly direction and driven by her grandfather, which was the first vehicle stopped by Newton.

As Lee attempted to maneuver the trailer off the highway, he saw and heard two sand trucks coming close together over the hill going west in the opposite lane of traffic from the pickup truck. These trucks were owned by Bill Cox Excavating Company (Cox) and driven by Cox employees, but were operating under a Georgia Public Service Commission permit issued to Avant Trucking Company (Avant). The loads of sand were owned by Avant and being hauled by Cox to the Queen City construction site. Lee waved for the lead truck to stop, but it did not. The driver, fearing that the truck close behind him could not stop if he did, jumped from the cab, allowing it to roll free at a speed of 55 to 70 m.p.h. The sand truck crossed the centerline of the highway, struck the tractor portion of the lowboy tractor-trailer truck, knocking it off the highway, and proceeded 66 feet further where it collided with the pickup truck. The second truck was able to avoid a collision by following the path of the first truck. Tracey Bridges suffered extensive injuries which led to her death several days later.

Upon the death of their daughter, the plaintiffs Charles Emmett Bridges and Erma D. Epps brought suit against Queen City, Cox, Avant and Reliance Insurance Company (Reliance), Avant's public liability insurance carrier.

After a lengthy trial, a jury verdict in the amount of $1,200,000 was returned in favor of the plaintiffs against all defendants, and a judgment was entered. Various post-judgment motions made by each defendant were denied by the trial court, and appeals were taken to this court. Held:

1. A substantial number of objections raised at trial involved evidence and jury charges concerning the agency relationship of the truck driver to defendants Avant, Cox and Reliance. The following facts established by evidence introduced at trial were undisputed.

Avant is a common carrier engaged in the business of hauling sand, gravel and such commodities around the state, particularly the middle Georgia area. In some instances Avant owns the commodities and hauls to customers who have contracted to purchase them, and at other times transports products owned by its customers. Avant was licensed by and operated under a Class B certificate of operation from the Georgia Public Service Commission (PSC), under which it was required to and did carry and have on file with the PSC a liability insurance policy issued by Reliance for the protection of the public caused by its negligence or that of its drivers. In the operation of its business Avant leased four tractor-trailer trucks and drivers from Cox. Pursuant to the terms of a written lease agreement, Avant paid for the use of the trucks and drivers on a daily ton/mile basis with fuel and repair costs deducted from the payments. As required by the PSC certificate of operation, Avant inspected and operated the leased vehicles as if it owned them, and Avant's name, address, telephone number and PSC certificate number were painted on both sides of the trucks. The drivers were hired and paid by Cox, and Cox made all social security and withholding tax deductions and also provided workers' compensation coverage. The usual daily procedure was for the drivers to take the trucks from the Cox shops, where they were kept overnight, to Avant each morning. There they would fill them with gas and be inspected by Avant, then transport the products according to Avant's instructions. Avant could not terminate the employment of a Cox driver; neither could it change a driver from one truck to another, nor alter a driver's duties. However, if for any reason Avant were displeased with a driver it could require Cox to replace him.

Avant, Cox and Reliance all assert that it was error for the trial court to charge on "dual agency" with respect to the relationship of the driver of the truck causing the death of Tracey Bridges, to the owner (Cox) and the lessee (Avant). The principle of dual agency is ordinarily applied in workers' compensation cases to avoid a second recovery in tort from a subcontractor after receiving compensation benefits from the general contractor. See, e.g., U.S. Fidelity & Guaranty Co. v. Forrester, 230 Ga. 182, 196 S.E.2d 133. The charge given, however, as requested by the plaintiffs, presented a basis for imputing liability to both Cox and Avant, and the jury was instructed "that it's possible for a person to be the agent of two principals, and if you should find that [the driver] was acting within the scope of his--of the business of both [Cox] and [Avant], and furthering the business interest of both of these defendants, then and in that event, I charge you that any negligence on the part of [the driver], should you find any, would be imputable to both these defendants. On the other hand, should you find that the negligence, if any, of [the driver] was applicable only to one of these defendants ..., if he was the agent of only one of these defendants, then, of course you would not be authorized to find against the other defendant."

It cannot be said that the charge given on dual agency was reversible error in this case as a matter of law. "Ordinarily, one is not the servant of two masters, but the courts of this State have recognized the principle that one may be the servant of two masters and subject to the demands of both or either. [Cits.]" Merry Bros. Brick etc. Co. v. Jackson, 120 Ga.App. 716, 719, 171 S.E.2d 924. "It is a well established rule that an instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it. [Cit.] 'To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.' [Cits.]" East Side Auto Parts v. Wilson, 146 Ga.App. 753(2), 247 S.E.2d 571. However, each of the defendants asserts that the charge was prejudicial to it on a particular basis or in conjunction with other errors.

a. Avant contends that it should have been exonerated as a matter of law from any agency liability based upon the premises expounded in three decisions involving leased vehicles. In the first of these, Mitchell v. Burden Bros., 126 Ga.App. 75, 77, 189 S.E.2d 909, this court, quoting with approval from Albert v. Hudson, 49 Ga.App. 636(1), 176 S.E. 659, stated: " '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, 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 to haul it, and this is the only supervision and control he exercises over the truck and the servant, and he has no supervision, direction, or control over the servant's mechanical operation of the truck, and has no right to discharge the servant or to put another one in his place in the operation of the truck, although he may have a right to discharge the unit consisting of the truck and the servant by discontinuing their service, the servant, in the operation of the truck, is the servant of the owner and not of the other person.' "

In Montgomery Trucking Co. v. Black, 231 Ga. 211, 212-213, 200 S.E.2d 882, the Supreme Court followed the principles enunciated in Mitchell v. Burden Bros., supra,...