McCord v. McElroy
McCord v. McElroy
Concurring Opinion
concurring specially. While in accord with the majority opinion I think the petition would without aid of Code (Ann.) § 68-301 set’forth a cause of action. It contains a general allegation that sufficiently alleged that Gary McElroy was the servant of the defendants and acting within the scope of his employment when he committed all of the acts resulting in the plaintiff’s injuries. Conney v. Atlantia Greyhound Corp., 81 Ga. App. 324 (68 S. E. 2d 559); Planters Cotton-Oil Co. v. Baker,
Not in every case is the act of the servant in eliciting the aid of a third person to assist in the transaction of the master’s business without the scope of his employment. In McGhee v. Kingman & Everett, Inc., 49 Ga. App. 767 (2) (176 S. E. 55) is the holding: “ 'In determining the liability of the master for the negligent or wilful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.’ Gomez v. Great Atlantic & Pacific Tea Co., 48 Ga. App. 398 (172 S. E. 750). 'The agent’s authority will be construed to include all necessary and usual means for effectually executing it.’ Civil Code (1910) § 3595. Thus, where a servant is employed to take and deliver goods of the master in the master’s truck to customers in another city, and after their delivery to return the truck to the master’s place of business, and while they are thus en route a blowout of a heavy tire occurs, rendering its repair or change to another tire necessary, the servant, in the absence of contrary instructions, is authorized to do all things essential to the conduct of such business for the master; and this includes the right, so far as reasonably necessary, to obtain the assistance of another in the furnishing of needful light for the work of changing the tire when the blowout occurs at night.”
Dissenting Opinion
dissenting. I am of the opinion that the act of 1955 (Ga. L. 1955, p. 454; Code, Ann., § 68-301) is not applicable to this case. Said act is as follows: “Every owner of a motor vehicle operated upon the public highways, roads or streets of this State shall be liable and responsible for the death, or injuries to person or property resulting from negligence in the operation of such motor vehicle, if said motor vehicle is being used in the prosecution of the business of such owner or if said motor vehicle is being operated for the benefit of such owner.” The 1955 law was enacted, in my opinion, to change the law as enunciated by the Supreme Court in Carter v. Bishop, 209 Ga. 919 (76 S. E. 2d 784). As was stated by the Second Division of this court in
Opinion of the Court
The petition alleged that William L. McCord, Jr., was injured when he was thrown out of, and under the wheels of, a truck owned by the defendants and being operated by their agent, servant and employee in the delivery of milk and statements for the defendants, and that his injuries were caused by the alleged negligence of the said operator of the truck, certain specified acts of negligence being alleged in the petition.
The act of 1955, supra, places liability on the owner of a motor vehicle in two instances, to wit: (1) When the motor vehicle is being used in the prosecution of the owner’s business, and (2) When the motor vehicle is being operated for the benefit of the owner.
The allegations of the petition in the present case show that the truck, which was owned by the defendants, was being operated by the defendants’ agent in the prosecution of the defendants’ business, and that such use was for the benefit of the defendants. Judge Townsend in Shropshire v. Caylor, 94 Ga. App. 37, 40, supra, said: “The effect of this law [referring to the act of 1955, supra,] is to extend the liability of owners of motor vehicles and to render them liable for the imputed negligence of another, where, under pre-existing law, there would be no such liability, and in effect makes proof of the benefit conferred on the owner the equivalent of proof of agency so as to impute the negligence of the operator to the owner.” Therefore, it is seen that the gist
The test in the present case is not whether the operator of the motor vehicle was acting within the scope of his employment in permitting the plaintiff to- ride in the truck and to help him in the delivery of milk and statements, but was the truck, at the time the plaintiff was injured, being used in the prosecution of the defendants’ business or for their benefit. Accordingly, inasmuch as the petition alleged certain acts of negligence of the operator of the truck while such truck was being used in the prosecution of the defendants’ business and while such truck was being used for the benefit of the defendants, which negligence was imputable to the defendants', the judgment of the trial court sustaining the defendants’ general demurrer to the plaintiff’s petition must be reversed.
Judgment reversed.
Concurring Opinion
concurring specially. As stated in Standard Steel Works Co. v. Williams, 155 Ga. 177, 181 (116 S. E. 636): “Where the language of a statute consists of common ordinary words, and there is nothing to show that any unusual meaning is to be attached to the terms employed, it would be going beyond the province of the court, and all recognized limitations upon it in the construction of statutes, to deny to- the language employed in the act its ordinary, usual signification and give it an unusual meaning and a forced or strained significance, even though such construction would avoid results which might be disastrous.” And, in the picturesque language of Judge Lumpkin, in Boston & Gunby v. Cummins, 16 Ga. 102, 111 (60 Am. Dec. 717), is the following salutary comment: “All Courts, both in England and in this country, regret that any exceptions were ever engrafted,
The foregoing quotations would seem to put me in good company in insisting that Code (Ann.) § 68-301 “means what it says.” In its relevant part it provides: “Every owner of a motor vehicle operated upon the public . . . roads ... of this State shall be liable and responsible for . . . injuries to person . . . resulting from negligence in the operation of such motor vehicle, if said motor vehicle is being used in the prosecution of the business of such owner. . .” Here the defendant was the owner of a motor vehicle. It was being operated on McAfee Road, a public road of this State. The plaintiff suffered injuries to his person resulting from negligence in the operation of the motor vehicle. The vehicle was at the time being used by an employee of the defendant for the delivery of milk, this being in the prosecution of the owner's business. I do not think these plain facts, and this unambiguous language, can be strained by a theoretical consideration of the intent of the legislature so as to reach some other result than the one here reached and thereby deny a right of recovery as a matter of law, where every provision of the statute, according to the allegations of the petition, has been brought into play by the factual situation involved. I accordingly concur in the majority opinion.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.