Opinion
35110.
DECIDED MAY 5, 1954.
Action for damages. Before Judge Heery. Savannah City Court. January 26, 1954.
Connerat, Dunn, Hunter, Cubbedge Houlihan, E. O. Hunter, for plaintiff in error.
Benjamin Silverman, Lewis, Wylly Javetz, contra.
Where the owner of an automobile hires a driver from the driver's general employer to drive such owner's automobile, in the absence of a specific agreement to the contrary, such driver, while driving for such automobile owner, is the servant of the owner and not of his general employer, and the general employer is not liable for the negligence of the driver while driving for the owner of the automobile.
DECIDED MAY 5, 1954.
S. Allen Cohen sued Joseph E. Hale and Yellow Cab Company of Savannah to recover damages allegedly due to the negligence of Hale while an employee of the cab company and while acting within the scope of his employment. The petition alleged: "That on the preceding night, September 30th, 1951, shortly after 10 p. m. o'clock, one James N. Pauley, also known as Paul Mayes, requested said Hale to park the taxicab and to drive the automobile of said Pauley or Mayes. Said Pauley or Mayes had been a passenger in the taxicab, the property of said The Yellow Cab Company of Savannah, which was being driven that evening by said Hale, from approximately 6 p. m. o'clock. Shortly before the latter time, said passenger made said request of said Hale to change vehicles. Said Hale then communicated this request to the dispatcher of said The Yellow Cab Company of Savannah, Cleo Loper, and asked for instructions as to whether or not the said passenger's request should be complied with. Said Loper stated to said Hale that said permission could not be granted without the approval of the night superintendent, Tannie A. Barefield. In a few minutes said Loper communicated with said Hale over the radio system used by said The Yellow Cab Company of Savannah, and informed him that he could bring in the cab and drive the passenger's private automobile. Said Hale then drove said taxicab to the garage of the said The Yellow Cab Company of Savannah, where said passenger paid him thirty-six ($36) dollars for the use of the taxicab and for the additional driving to be done by him for said passenger; this thirty-six ($36) dollars was paid over to said The Yellow Cab Company of Savannah's dispatcher at said time and place, the same being done in the presence of said Barefield. Said Barefield confirmed the statement of said Loper and then and there informed Hale that he could park the taxicab in the garage and authorized him to drive the automobile of said passenger. Said dispatcher then sent said Hale and said passenger in a taxicab of The Yellow Cab Company of Savannah, driven by Jimmy Bearden, to the place where said passenger had parked his Chevrolet automobile. Petitioner does not know where said location was, but alleges that it was in the City of Savannah, Chatham County, Georgia. Petitioner alleges that this is a matter peculiarly within the knowledge of the defendant. Said Hale then proceeded as the agent and employee of said The Yellow Cab Company of Savannah, and acting within the scope of his agency and employment to drive said Chevrolet automobile of said Pauley or Mayes about the City of Savannah. Said Hale invited James N. Kelly to join them in the ride, which said Kelly did. Said passenger was under the influence of intoxicating liquors all during said period of time, that is, from 6 o'clock on September 30th, until the following morning. Shortly after 10 p. m. on September 30th, said passenger, Kelly, and Hale bought a pint of whisky and all of them drank out of said bottle of whisky from that time until they had finished it. Some time during the night of September 30th, the said time being unknown to petitioner, said Hale drove said Chevrolet automobile to the City of Augusta, where he ran the same into petitioner, as aforesaid. Following said collision the police of the City of Augusta arrested said Hale and put him in the city jail. He was informed that he could be released by posting a cash bond of sixty-three ($63) dollars. Said Hale sent a telegram to said night superintendent, Tannie A. Barefield, requesting said money to post said bond. Said Barefield immediately responded by wiring sixty-three ($63) dollars to said Hale for such purpose."
The cab company filed general and special demurrers to the petition which were overruled. The cab company excepts to the overruling of the demurrers.
The court erred in overruling the general demurrer to the petition. The allegation that Hale paid $36 to the cab company's dispatcher for the passenger's fare for the time he used the cab and for driving the passenger's automobile after the exchange of vehicles was made is not an allegation of the ultimate fact that all of the money was paid to the dispatcher for the use and benefit of the cab company. It is only an allegation of an evidentiary fact, and any inference drawn would have to be against the pleader unless the fact pleaded demanded the inference that the money was paid for the cab company's use and benefit. But assuming for the sake of argument that the $36 was paid to the dispatcher for the use and benefit of the cab company, and that the cab driver was the general servant of the company, he was the special servant of the passenger if the passenger had the right to control the time and manner of the performance of the services and to discharge the person rendering the service from the particular employment for disobedience of orders or misconduct. Reaves v. Columbus Electric Co., 32 Ga. App. 140, 148 ( 122 S.E. 24). We think that the controlling fact in this case is the ownership of the automobile. Since there was no express contract as to the control to be exercised by the passenger, where the owner of an automobile hires a person to drive the owner's automobile for him, in the absence of an express contract to the contrary the law will presume that the owner of necessity reserves or possesses the rights of the complete authority of a master, whether the servant is hired by a contract between him and the car owner or between the driver and his general employer. This seems to us to be too plain to admit of much discussion. It seems to us that it would be untenable to argue that in such a case the owner of the vehicle did not have authority not only to give instructions as to destination, but to give them in minute detail, even as to speed within legal limits, amount of air in tires, and even as to gears in which the vehicle might be operated. Many cases have been cited by the defendant in error but none involves similar facts. For instance, it has been held that a cab driver was the servant of his cab-company employer and not of a passenger even though the driver owned the cab. But even there the cab company had full control of the driver. Neither Ellison v. Evans, 85 Ga. App. 292 ( 69 S.E.2d 94), nor Atlanta Coach Co. v. Curtis, 42 Ga. App. 639 ( 157 S.E. 344), is contrary to what is herein ruled. As defendant in error states that these cases are his best authority, we deem it unnecessary to cite others.
The court erred in overruling the general demurrer to the petition.
Judgment reversed. Quillian and Nichols, JJ., concur.