Opinion
36212.
DECIDED MAY 23, 1956.
Tort; benefit to motor vehicle's owner. Before Judge Paschall. Gordon Superior Court. March 9, 1956.
Hardin McCamy, for plaintiff in error.
Harry T. Lawrence, James B. Langford, contra.
1. Where the owner of an automobile arranges with the owners of a certain service station to have his car washed and greased, and, by arrangement with an employee of the service station, the car is to be returned to the owner after the work on it has been completed, the agreement to redeliver the car is a part of the contract of bailment, and its driver is the agent of the bailee, not the bailor. Speed Oil Co. v. Jones, 59 Ga. App. 625 (1) ( 1 S.E.2d 760). This is true regardless of the fact that the petition alleges that the driver was the agent of both parties, since such allegation is a legal conclusion which must yield to the law based on the specific allegation on which the fact of agency is predicated. Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 ( 58 S.E.2d 559). Ordinarily, except as modified by statute, "the relation of master and servant must exist between the owner and the operator of the car in order to render the owner liable for the negligent conduct of such operator . . . the mere fact that a servant is, at the time of an injury performing work beneficial to a third person, does not render him the servant of such third person and make such third person thereby responsible for his negligent acts." Graham v. Cleveland, 58 Ga. App. 810, 811 ( 200 S.E. 184). Accordingly, the petition here does not set out a cause of action against the owner of the automobile on the theory that the employee of the service station, in returning the automobile according to his directions, was acting as his agent. See also Fisher v. Clark, 60 Ga. App. 744 ( 5 S.E.2d 249); Simmons v. Beatty, 61 Ga. App. 759 ( 7 S.E.2d 613); Durden v. Maddox, 73 Ga. App. 491, 493 ( 37 S.E.2d 219); Johnson v. Webb-Crawford Co., 89 Ga. App. 524, 528 ( 80 S.E.2d 63).
2. The petition does, however, allege that the vehicle was, at the time the injuries were inflicted, being operated for the benefit of such owner and pursuant to his instructions. It is accordingly sufficient to render the defendant owner liable for the negligence of the operator under the provisions of Code (Ann. Supp.) § 68-301, which extends the liability of an owner of an automobile to cover the negligence of the driver where the car is being operated "for the benefit of such owner."
DECIDED MAY 23, 1956.
Frank Caylor filed an action for damages in the Superior Court of Gordon County against Tate and Lewis, doing business as Tate and Lewis Service Station, and James Shropshire (the plaintiff in error here), alleging in substance that Shropshire was the owner of a certain automobile; that prior to his departure for work he turned the vehicle over to Willie Paul Jones, a regular employee of Tate and Lewis, to have it washed and greased and then delivered back to Shropshire's home; that, after servicing the car, Jones proceeded to drive it back to the defendant's home, with Tate following him in a service station truck for the purpose of picking Jones up after he had left the automobile; and that while on the way the defendant's automobile driven by Jones negligently collided with the plaintiff's car, inflicting certain specified injuries upon him. It is alleged that the defendant turned the car over to Jones "for the purpose of having Willie Paul Jones act as his agent in transporting said automobile to the Tate and Lewis Service Station to have the said automobile washed and greased," and "that Jones was to act both as the agent of Shropshire and as the agent or servant of Tate and Lewis, and as the joint agent or servant of both he would wash and grease the said automobile and with the consent and aid of Tate and Lewis would deliver said automobile back to Shropshire's home, all to the knowledge and consent of Shropshire."
Shropshire's general demurrer to the petition was overruled, and the exception is to this judgment.
1. Headnote 1 needs no elaboration.
2. Code (Ann. Supp.) § 68-301 (Ga. L. 1955, p. 454) provides 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." No judicial construction of this act has previously been given by this court or the Supreme Court. The wording "being operated for the benefit of such owner" is in substance so different from the statutes of other States making the owner liable for damage resulting from the negligence of an operator using the vehicle with the owner's consent that comparison with other laws sheds small light on the issue. See, in this regard, 60 C. J. S. 1123, § 442 et seq.; 5 Am. Jur. 735, § 401; Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 5, p. 83, § 2912. No question arises under the pleadings in this case as to the knowledge or consent of the defendant owner to the use to which the automobile was being put by the employee of Tate Lewis Service Station, since it affirmatively appears that the owner desired and instructed such employee to bring the car back to him after servicing it. While these allegations are, as pointed out in the first headnote, insufficient to constitute the employee the agent of the defendant owner, they are certainly sufficient to show that the car was being used in a manner in which the owner desired it to be used. The leaving of a thing where one contracts for the labor or services of another in relation to it is a bailment for hire. Code § 12-201. Where an article is bailed to another for the purpose of making repairs on it for a consideration, the bailment is in its inception for the mutual benefit of both the bailor and the bailee. Renfroe v. Fouche, 26 Ga. App. 340 (2) ( 106 S.E. 303). Accordingly, the bailment of the defendant's automobile to be washed, greased, and returned to him was for the benefit of the defendant as well as for the benefit of the service station, and the returning of the automobile from the service station to the owner by an employee of the service station was a part of the transaction. See Speed Oil Co. v. Jones, supra. Since such transactions are for the benefit of both the bailor and the bailee, the automobile of the defendant while being thus returned to him was "being operated for the benefit of such owner." This statute does not require that the operation of the vehicle be for the sole benefit of the owner, and must be construed so as to render the owner liable when the operation is such as is here alleged, which shows it to have been a substantial benefit to the owner and rendered pursuant to his procurement. The effect of this law is to extend the liability of owners of motor vehicles and to render them 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.
Accordingly, the petition sets out a cause of action against the defendant, and the trial court properly overruled the general demurrer to the petition.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.