Harper v. Brown
Harper v. Brown
Opinion of the Court
The defendant Harper was president of Southern Propane Company, a wholly owned subsidiary corporation of the defendant Allied Chemical Corp., and as such was furnished with the use of the automobile which he was driving at the time of the collision. The evidence is uncontradicted that on the Sunday in question he was engaged in driving a friend out to his farm for personal reasons, and in doing ac errand for the friend, neither of which objectives had any relation to the business of either of the corporations. The general rule is as stated in Price v. Star Service &c. Corp., 119 Ga. App. 171 (1 c, e) (166 SE2d 593): When a servant is permitted by the master to use a vehicle for the servant’s own pleasure or business, wholly disconnected from that of the master, and a third party is injured by the servant’s negligent operation of it while on his own mission, the master cannot be held liable under the doctrine of respondeat superior. . .
The court charged: "The laws of Georgia prohibit the operation of an automobile at a speed in excess of 35 miles per hour on a public highway in a residence district. . . If you find that Mr. Harper was driving his motor vehicle in excess of 35 miles per hour on a public highway of this state in a residence district, such conduct would amount to negligence as a matter of law.”
The evidence shows that there were houses along the road in this area and that it was not within a municipality. The only evidence as to speed limit came from a deputy sheriff who understood it to be 60 miles per hour. There was no evidence that any maximum speed sign appeared along the highway. Code Ann. § 68-1626 deals with speed limits, subsection (2) setting the 60 mph. daytime limit where no special hazard exists. Subsection (1) sets a limit of 35 mph. in any business or residence district. Speed zones are established by the State Highway Board as set out in Code Ann.
"A residential area is defined by statute. It is 'the territory contiguous to and including a highway not comprising a business district when the property on such highway for a distance of 300 feet or more is in the main improved with residences or residences and buildings in use for business: Provided, however, that when such territory is located outside the incorporated limits of a city or town, it is designated and marked as such by the Director of Public Safety.’ Code Ann. § 68-1504 (5) (b).” Heaton v. Smith, 121 Ga. App. 348 (174 SE2d 197). Where nothing in the record suggests that a reduced speed limit had in fact been effectuated at the place of the collision, it was error to so instruct the jury as to leave it free to find the defendant guilty of negligence per se if it was determined that he was traveling between 35 and 60 miles per hour in a "residential district.”
The remaining enumerations of error are not passed upon. For the reasons set out in the first division of this opinion, the trial court erred in denying a judgment notwithstanding the verdict to the corporate defendant. This being true, the court has no jurisdiction over the nonresident defendant Harper, and the judgment against him must be set aside.
Judgment reversed.
Dissenting Opinion
dissenting in part. I concur with the majority-opinion as to Division 2 and the judgment of reversal for reasons stated therein. Accordingly, I agree that the case should be sent back to the trial court for another trial because the court erred in charging the jury that 35 miles per hour is the maximum speed limit in a "residential district” when the evidence fails to show that this residential district had been so marked and designated by the proper public authorities.
But I dissent from Division 1 of the majority opinion. The question is whether or not a corporation may supply to its president an automobile, to be used at any and all times by such president in his discretion, without let or hindrance, and without any restriction as to how and when and where he shall use it, and escape liability for its negligent use. None of the cases cited by the attorneys, or by the majority opinion, involve facts similar to the case sub judice. Nor by diligent search have I been able to find such a case where the president of a corporation is given unlimited and unrestricted use of an automobile and injury results to another by reason of its use. The cases cited in the majority opinion are Hopkins v. City of Atlanta, 172 Ga. 254, supra; Strickland v. Bank of Cartersville, 141 Ga. 565, supra; Heath v. Atlanta Beer Distributing Co., 56 Ga. App. 494, supra; Fulton Bag &c. Mills v. Eudaly, 95 Ga. App. 644, supra; and Fielder v. Davison, 139 Ga. 509, supra. The first two cited cases (Hopkins and Strickland) involve actions for fraud by a president of a corporation, which is in no way similar to the case at bar. The third case (Heath) involves the wilful shooting of another by an officer of a corporation which likewise is not similar to the case at bar. The fourth case (Fulton Bag & Cotton Mills) does not involve a general officer, such as a president, of a corporation, but involves a "traveling salesman,” and is therefore not in point; and the fifth case (Fielder) involves master and chauffeur, and is not in point. What difference is there between a corporation’s furnishing an automobile to a mere agent, such as a traveling salesman and the furnishing of an automobile without restriction to its president? The traveling salesman takes orders from the corporation, and operates when and where he is told to operate the car; he is given a restricted territory in which to operate; or he is authorized to use the car only on business for
In this case the plaintiff sued the corporation and its president. The corporation’s residence was in Glynn County, and the president’s residence was in Wayne County. The defendants defended, among other things, on the theory that there was no agency and therefore no liability on the part of the corporation, but a jury decided in favor of the plaintiff and the trial court approved the verdict. Therefore all of that evidence must be construed in its most favorable light to uphold that verdict; every presumption and inference is in favor of the verdict. See Wren v. State, 57 Ga. App. 641, 644 (196 SE 146); Southern R. Co. v. Brock, 132 Ga. 858, 862 (64 SE 1083); Young Men’s Christian Assn. v. Bailey, 112 Ga. App. 684, 690 (146 SE2d 324). Further, the testimony of a party (the president in this case), must be construed most strongly against him. See Southern R. Co. v. Hobbs, 121 Ga. 428 (1) (49 SE 294). Here there was a motion for directed verdict, which was denied, and the evidence must be construed most strongly against the party making it. McNabb v. Hardeman, 77 Ga. App. 451 (49 SE2d 194); Birchmore v. Upchurch, 78 Ga. App. 233, 235 (50 SE2d 857); Curry v. Roberson, 87 Ga. App. 785, 786 (75 SE2d 282). Construing the evidence under these rules, it becomes significant
In final analysis I believe this case to be controlled by the same principle enunciated in the "family-purpose car doctrine.” Such doctrine came into being, not through statute, but by judicial construction and interpretation, and the earliest case so holding is that of Griffin v. Russell, 144 Ga. 275 (87 SE 10, LRA 1916F 216, AC 1917D 994), decided in 1914, with the opinion written by Justice Lumpkin, with Presiding Justice Evans concurring specially, but dissenting as to the family-purpose doctrine. It dealt with the same problem: whether the owner who places a car at the disposal of another, not just for business, but for "business, pleasure, and convenience,” becomes liable for the negligent operation of the car. The philosophy behind this family-car doctrine is that it is not just "business,” but also "pleasure and convenience” of the person using the car which places liability on the owner for its negligent operation. This was a new and novel doctrine, but in what other way could the public be protected against one who uses the automobile of another at various and divers times, or all of the time? To limit liability to "agency for the benefit of the owner” on the particular occasion was held to be much too narrow an interpretation. The public is protected against the negligent operation of the car by the family member at any time so long as its use is for "business, pleasure or convenience” of the member, where this is the purpose for which it is furnished to such family
While this is not an equity case, one of the maxims of equity would seem applicable, to wit, Code §37-113: "When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss.” Although the following cases involve the family-car doctrine it has become a well-established rule that the owner of a car is responsible for the negligent operation thereof by another, if the owner is present and in the car at the time. Graham v. Cleveland, 58 Ga. App. 810, 811 (200 SE 184); American Casualty Co. v. Windham, 26 FSupp. 261 (cert. denied, 309 U. S. 674); Golden v. Medford, 189 Ga. 614 (7 SE2d 236); s. c., 62 Ga. App. 229 (8 SE2d 531); Cohen v. Whiteman, 75 Ga. App. 286 (43 SE2d 184); Pritchett v. Williams, 115 Ga. App. 9 (153 SE2d 639). So, if the corporation was present and in the car at the time of the collision, it would have been liable. But a corporation is an artificial person, and acts through its officers. Code § 22-712. How can it be said that the corporation (the owner) was not in the car at the time of the wreck, when its president (its alter ego) was present therein? The president of a corporation is its alter ego. Potts-Thompson Liquor Co. v. Potts, 135 Ga. 451 (3, 4) (69 SE 734); Franklin Savings &c. Co. v. Branan, 54 Ga. App. 363, 366 (188 SE 67).
So, I respectfully urge that this is not a case where the presi-' dent of a corporation has committed fraud, whereby the corporation can escape liability; nor is it a case where the president of a corporation has shot and killed another, and it is held that the corporation is not liable; nor is it a case where a mere servant,
At the very least, it makes a jury question for determination by it, and having made such determination in favor of the plaintiff, which has been approved by the trial court, we should not disturb its finding.
Reference
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