Opinion
32870.
DECIDED MAY 3, 1950.
Action for damages; from Thomas Superior Court — Judge Lilly. October 25, 1949.
B. B. Earle Jr., Miller Head, for plaintiff.
Forester Calhoun, for defendant.
The court did not err in sustaining the demurrer to the petition and dismissing it, for the reasons set forth in the body of the opinion.
DECIDED MAY 3, 1950.
This case is here upon an assignment of error upon the judgment sustaining a general demurrer and dismissing the petition. We will set forth substantially the petition in order to get a clearer view of the contentions of the parties. The petition alleged that H. G. Ramsey, whom we shall hereinafter call the plaintiff, filed a petition against the Watkins Motor Lines Inc., whom we shall call the defendant. It is alleged in each paragraph respectively as follows: Paragraph 1, that the defendant is a Florida corporation, doing business in the State of Georgia and having an office in Thomasville, Georgia, and subject to the jurisdiction of the Thomas County Superior Court; paragraph 2, that the defendant had damaged the plaintiff in the sum of $760.35; paragraph 3, that on the 28th day of March, 1949, the parties made a contract for the hire of an F 8 Ford tractor and trailer, three-ton capacity, under the terms of which the defendant bailed from the plaintiff such hauling equipment for the purpose of making one haul to the State of Michigan; paragraph 4 alleges that a copy of the contract is attached. This exhibit reads: "Agreement for lease of equipment. No. A 2337.
"This equipment lease made in triplicate, this 3/28/49, between Watkins Motor Lines, Inc., (April) at Rome, Georgia, herein called Lessee, and H. C. Baxter, % R. L. Bass, Atlanta, Georgia, herein called Lessor: Witnesseth; That Lessor does lease, let and hire to Lessee a certain tractor and semi-trailer combination for the purpose of transporting one load of general commodities, on the date of this agreement covered by Pro Manifest No. 5474, Weight 25,000 from Fort Gaines, Georgia, to Detroit, Michigan.
"It is hereby mutually covenanted and agreed as follows:
"1. The equipment leased is described as follows:
(a) Make of tractor ________ Motor Number _________
(b) License Tag: Tractor: State: Georgia Number.
Trailer: State ______ Number: __________
"2. Lessee shall pay a rental to the Lessor as follows: 1.00 cents per 100 pounds for 25,000 pounds . . $250.00. Or _______ cents per mile for ______ agreed miles . . $ ___________ Or Flat charge for the trip of . . $ ________ which rental shall be payable at Thomasville, Georgia.
"3. Lessee shall have dominion, supervision, and control of the equipment during this trip, and shall insure the leased vehicle for public liability and property damage and cargo insurance.
"4. Lessor shall bear all cost incident to operating and maintaining the equipment, including driver's wages and fuel, and covenants that the equipment herein leased complies with all safety regulations and is equipped with all safety equipment prescribed by the Interstate Commerce Commission or the States traversed on said trip.
"5. Lessor shall bear all costs of short and damage claims.
"In witness whereof the parties hereto have caused this agreement to be executed by their duly authorized agents, the day and year first above written.
Witness: Watkins Motor Lines, Inc. (Lessee) _______________________ By: H. C. Baxter (Lessor) As to Lessee By /s/ H. C. Baxter _______________________ As to Lessor Arrived destination: (Date) _________________ 19__ __________________________ Agent.
"2. Lessor of Equipment. (End of Exhibit A.)
Filed in office 15 day of August, 1949. H. A. Vann, Clerk."
Paragraph 5 of the petition alleges that H. C. Baxter executed the contract for the plaintiff, and the plaintiff adopts the acts of Baxter as his agent; paragraph 6 alleges that the plaintiff through his agent Baxter has fully performed all his duties and obligations under the contract by delivering into the dominion, supervision and control of the defendant said equipment during said trip.
Paragraph 7 of the petition reads: "Defendant while having said equipment in his dominion, supervision, and control, and sending same into the State of Michigan, did not procure from the State of Michigan a reciprocity license tag required by the laws of the State of Michigan for truck carriage into that State."
Paragraph 8: "It was the duty of defendant, the lessee, and shipper of the cargo hauled by the plaintiff into the State of Michigan to procure and have on said shipment said reciprocity license tag. Such duty being imposed by the Motor Carrier Rules and Regulations established by the Michigan Public Service Commission, Section 3, Paragraph (c), which were in effect at the time of the execution and performance of this contract and which reads as follows: `Application by motor carriers for hire, engaged in interstate commerce, for permission to use the highways of this State, in such commerce, shall be made in writing to the commission, be verified under oath, and shall be in such form and contain such information as the commission shall prescribe.' "
Paragraph 9: "While said truck and trailer equipment of plaintiff's was upon the business and under the dominion, supervision and control of defendant, proceeding to or through the Town of Erie, Michigan, on the 31st day of March, 1949, said bailed equipment was stopped and held by the authorities of the State of Michigan for failure to have its cargo of produce which defendant had hauled there, the license required for such haulage."
Paragraph 10: "It was not the duty of plaintiff, but it was the duty of the defendant, to procure and provide such license."
Paragraph 11: "Plaintiff notified defendant promptly on the 31st day of March, 1949, that said truck and equipment had been stopped and impounded, but defendant failed and refused to pay the fine imposed by the State of Michigan or to take any further steps and failed and refused to cause the release of said equipment and truck and same was held and impounded for seven continuous days until on the 6th day of April, 1949, plaintiff, in default of action by the defendant to release said truck, paid the fine imposed by the State of Michigan upon said shipment and procured the release of the bailed truck and trailer."
Paragraph 12 alleged that by reason of the breach of the contract, the plaintiff had suffered in the amount above alleged. There are several items going to make up the total sued for. And in addition it is alleged in this paragraph that the damages were directly and approximately caused and necessitated by the failure of the defendant to comply with its duty to procure said license as aforesaid and that the damage resulted directly and approximately because of the stopping and holding of said truck and equipment.
Paragraph 13 alleges damage and refusal of the defendant to pay the amount for which suit is brought.
A general demurrer was interposed to the petition, and sustained.
The only question presented here is, does the petition, construed most strongly against the pleader, and admitting all facts well pleaded, set out a cause of action? There are several preliminary questions which we might here mention. It will be observed (a) that it is nowhere alleged in the petition for what purpose the truck in question was used prior to the contract. (b) It is nowhere alleged that the plaintiff or the defendant were other than operators of motor vehicles for hire. It is not alleged that either of them, prior to this transaction or during this transaction, were motor common-carriers. Construing the petition most strongly against the pleader, no other conclusion can be reached except that they were both operators of motor vehicles for hire and not operators of motor common-carriers. Counsel for the plaintiff bases his argument on the theory that the defendant was the operator of motor common-carriers for hire and therefore it was the defendant's duty to procure the reciprocity license in the State of Michigan under the regulations of the authorities of Michigan as to motor carriers' rules and regulations set out in paragraph 8 of the petition. By reference to the rules and regulations of Michigan as set forth in paragraph 8 of the petition it will be noted that those rules and regulations do not mention motor common-carriers. The words are used: "Application by carriers for hire engaged in interstate commerce, etc." Therefore, it appears that the burden of the argument for the plaintiff as to the laws both foreign and in this State as regards motor common-carriers, are not applicable under the pleadings in this case. Our law with reference to motor common-carriers is contained in our Code, Ch. 68-6. Since we have determined that the petition does not allege sufficient facts to show that the defendant was a motor common-carrier as above stated, we will not deal with that subject here except to say that counsel for the plaintiff recognizes that there is quite a distinction between a motor common-carrier and a motor vehicle for hire. The latter class is dealt with in Chapter 68-7 of our Code. We will not deal with the Code sections in this chapter other than § 68-709. That section reads: "Registration and licensing of motor vehicles for hire. Every owner of a motor vehicle who operates the same for hire, either for hauling passengers or freight, whether a resident or nonresident of this State, shall register the same with the State Revenue Commission and obtain a license therefor, and shall pay any and all fees and taxes which may be required by law: Provided, however, this section shall not apply to motor vehicles from States other than Georgia, where such other States do not require the purchase of such licenses and license tags by such motor vehicles owned and operated under Georgia licenses in such other States." It will be noted that the Code section immediately above set forth requires the owner of every motor vehicle who operates the same for hire to comply with the regulations of this section and chapter. The petition shows that the plaintiff was the owner of this motor vehicle in question. He hired the motor vehicle to the defendant. It does not seem that the plaintiff could evade the provisions of this chapter and section by hiring the motor vehicle to the defendant. It would seem that this would be the same as if the plaintiff had operated the truck himself for hire. Indeed, it seems, according to the terms of the contract between the parties, that the plaintiff did to all intents and purposes operate the truck himself. He furnished the driver who actually operated the truck, paid the driver's wages, paid for the fuel for the truck, and in his bill of particulars there is an item included in the amount sued for as follows: "Loss of earnings of said truck driver from being delayed six entire working days: $500." There is nothing in the petition or the contract to show that the defendant was to comply with the provisions of Code § 68-709.
The court did not err in sustaining the demurrer and dismissing the petition.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.