1. "If a servant is employed to do certain work for his master and employs another person to assist him, the master is liable for the negligence of the assistant only when the servant had authority, express or implied, to employ him, or when the act of employment is ratified by the master."
2. Where the owner of an automobile uses it privately for business purposes, or publicly as a taxicab, he can not be held liable for an injury caused by the car while operated by a person unknown to the owner and without his express or implied permission.
3. Where the uncontradicted evidence shows that M, under his contract with C, the defendant, to operate the taxicab, was without authority to permit anyone else to use or operate the taxicab for any purpose whatsoever, it was not within the power of M to permit anyone else to use the taxicab either in the course of the owner's business, or otherwise. In neither event could M, to this extent, extend the scope of his agency without the consent of his principal, C.
DECIDED OCTOBER 25, 1947. Mrs. W. D. Jordan brought suit against Mathis Cowart for personal injuries alleged to have been sustained as the result of a collision between an automobile being operated by the plaintiff and an automobile owned by the defendant, Cowart, which was being operated at the time of the collision by one Charlie Lee Mitchell. The jury returned a verdict in favor of the plaintiff; *Page 856 the defendant made a motion for new trial based on the general grounds; this motion was overruled, and the defendant excepted.
The evidence shows that the defendant owned one automobile which he operated "from the line" of the New Deal Taxicab Company. The New Deal Taxicab Company was not a taxicab business owned and operated by the defendant. It was simply a name under which the defendant and other independent owners of automobiles each operated his automobile as a taxicab. Each owner, including the defendant, paid a stated monthly amount for each automobile that he operated "from the line" which was intended and used solely for the purpose of paying the expense of maintaining and operating an office, including a telephone and the salary of a girl to answer the telephone and receive calls for taxicabs. Each cab was under the sole and exclusive direction and control of its owner, with no authority in any of the other owners of taxicabs which were operated from the line of the New Deal Taxicab Company, to control the manner of its operation. The owner of a cab could put his car on the line or take it off whenever he saw fit. The several owners of cabs operating under the name and style of the New Deal Taxicab Company employed no person who was given any authority or control over the cabs being operated from that line. The owner of each cab collected the fares earned by his cab and was under no duty or obligation to account therefor to any of the other owners. Hence, it appeared that the extent of the defendant's operation of a "taxicab business" under the name of New Deal Taxicab Company was simply the independent operation of one taxicab from a stand, called the New Deal Taxicab Company, the expenses of which, as above stated, were paid by the defendant and the other independent owners and operators of taxicabs from that stand.
The one taxicab owned by the defendant was operated on a commission basis by Jessie Maddox. The defendant testified in part as follows: "I hired a fellow to drive, a Jessie Maddox. I hired Jessie Maddox about 3 or 4 months before March 24. The car was turned over to him to operate and he operated it night and day. He was in full charge of the operation. As to on what basis did he operate, I paid him so much out of the dollar. I mean I paid him a commission. He then operated the automobile as he saw fit, night and day if he wished. Whatever he took in operating *Page 857 the car he reported it back to me, and I would settle up with him on a commission basis. I had nothing to do with operating the car. I left the operation entirely up to Jessie Maddox night or day, any time. . . As to what control did I exercise over the car after I turned the car over to Jessie Maddox to operate a taxicab business, I always told everyone I hired that I didn't want two men to drive the car; that when they got tired or wanted the day off, to bring the car to my house and park it." On cross-examination the defendant testified: "During the time that Jessie Maddox drove that car for me, which I say was some several months prior to the time the accident happened, to my knowledge, he never hired anybody to drive that car for him; if he had and I found it out, he wouldn't drive it any more. I gave him, and everybody else that drove for me, specific instructions not to let anybody else drive. At the time the accident happened Jessie Maddox was not driving my car. I forget the boy's name who was driving it, and I wouldn't know him if I saw him. His name was Charlie Mitchell, that's it. He never worked for me. I had not given Jessie Maddox authority to employ Charlie Mitchell to drive that cab for me. I did not give Charlie Mitchell in this case authority to drive that cab for me, because I've never seen him. I have not seen Charlie Mitchell since the accident happened, I've never seen him."
On redirect examination the defendant testified: "In other words, I placed the car in charge of Jessie Maddox and he drove day and night as far as I know or could tell. He had complete charge of the car and kept it at his house when it wasn't in use. The only thing I had to do with the operation of the taxi business was for him to report to me each day the fares he had taken in and I had a settlement with him. The entire operation of the taxicab business, excusing letting somebody else drive, was left entirely to Jessie Maddox. By excusing letting somebody else drive I mean just this: I always advised him to not let nobody else drive the car but him; but, of course, if I was to give him the opportunity of hiring somebody else or putting somebody else on the car that would be turning the car over to him every way. You can't give a lot of colored people an opportunity to do something; they go above it. Then, according to my statement, he had entire charge of operating that taxicab business except letting someone else drive for him." *Page 858
The plaintiff relied upon the testimony of Charlie Lee Mitchell to show that the defendant was bound because of the general custom of employees of owners operating taxicabs to employ substitute drivers. Mitchell testified in effect that there were persons who had obtained taxi driver's permits who did not have regular jobs driving a cab, who hung around the various cab companies, including the New Deal Taxicab Company, and would drive extra when anyone would hire them. The witness did not, in fact, know of any custom at the New Deal Taxicab Company whereby an employee of an owner of a cab would when he became tired, employ such an extra driver to drive the cab of which he was in charge. He not only knew of no custom in this regard, but he could not detail a single instance in which he knew that an employee in charge of a cab of an owner had, in fact, employed another to operate the cab. Hence, about the most that can be said of the testimony of this witness is that he knew that there were drivers who had permits who did not have a regular job driving a cab and that he knew that sometimes such a person would drive a taxicab operating from the New Deal Taxicab Company's line; and that he did not know whether such persons ever drove for an employee of an owner, or were directly hired by the owner of the cab.
On cross-examination Mitchell testified: "As to whether I had never seen Mathis Cowart [defendant], the owner of the cab I was driving, when I had the wreck, I don't know him. He had never talked to me about driving for him. Had never engaged me. I couldn't say of my own knowledge whether Mathis Cowart had given Jessie Maddox permission and authority to hire someone to drive his cab. I don't know what kind of arrangement they made. I wouldn't know either whether Mathis had instructed him not to let anyone else drive his cab."
The briefs of both the plaintiff and the defendant state that the only question presented for determination by this court is whether the evidence authorized the verdict. 1. The mere fact that the extra drivers may have at times driven cars operated from the New Deal line, without any showing whether on such occasions they were employed *Page 859 directly by the owner of the cab which they operated, and without any showing that there was a general custom for employees of owners operating taxicabs from that line to employ another, would not authorize an inference that the defendant had impliedly consented for Jessie Maddox, the regular driver, to employ anyone else to operate his cab. Therefore, the question of custom is not material to the determination of this case.
2. "One employed by a servant to assist in the performance of his master's business is not an employee of the master, for whose negligence the master will be liable, unless the servant has authority, either express or implied, to employ help." 5 Blashfield's Cyclopedia of Automobile Law and Practice (perm. ed.), p. 49, § 2921, 1 Am. Law Inst. Restatement, Agency, § 81, provides: "Unless otherwise agreed, a servant is not authorized to permit or employ another to perform acts of service which he is employed to perform." In Cooper v. Lowery, 4 Ga. App. 120 (60 S.E. 1015), it was held: "If a servant who is employed to do certain work for his master employs another person to assist him, the master is liable for the negligence of the assistant only when the servant had authority, express or implied, to employ him, or when the act of employment is ratified by the master." The ruling in this case was followed in White v. Levi Company, 137 Ga. 269 (73 S.E. 376).
Here it is not a question of the driving of the automobile with the consent of the owner and the driver causing an injury by driving it in a manner contrary to the instructions of the owner, but it goes deeper than that. It is a question of whether the person driving or operating the car was authorized by the owner to drive or operate it under any conditions, or in any manner whatsoever. Of course an owner may instruct his servant not to be negligent in a specific manner or generally while driving his car. Notwithstanding this, a negligent act of the servant which violates such instructions may subject the master to liability. It has been said that if the act done is a tort, whether negligent or voluntary, and is done in the prosecution of the master's business, that is, the servant at the time is engaged in serving the master, the latter is liable. Fielder v. Davison,139 Ga. 509, 512 (77 S.E. 618). But this statement is predicated, of course, upon the fact that there has been created and exists the relationship of master and servant. *Page 860
Here Charlie Mitchell was not the servant of the owner, Mathis Cowart, unless Jessie Maddox, who contracted with Cowart to operate the cab, was authorized, expressly or impliedly, to permit Charlie Mitchell to use or operate the cab.
The uncontradicted evidence discloses that Jessie Maddox, under his contract with the defendant to operate the taxicab, was without authority to permit anyone else to use or operate the cab for any purpose whatsoever. We think, therefore, that under the elementary rules of agency it was not within the power of Jessie Maddox to permit anyone else to use the cab either in the course of the owner's business or otherwise without the consent of the owner. Maddox could not thus extend the scope of his agency without the consent of the master. Simon v. City Cab Co., 78 Fed. 2d, 506; Cooper v. Lowery, supra; White v. Levi Company, supra; Pearce, Young, Angel Company v. Ward,72 Ga. App. 89 (33 S.E.2d 39); Gulf Refining Company v.Harris, 30 Ga. App. 240 (117 S.E. 274); Mathis v. Western Atlantic Railroad, 35 Ga. App. 672 (134 S.E. 793); Phipps v. Gulf Refining Co., 25 Ga. App. 384 (103 S.E. 472);Western Atlantic Railroad Co. v. Jackson, 21 Ga. App. 50 (93 S.E. 547); Sinclair Refining Company v. Veal, 51 Ga. App. 755 (181 S.E. 705); Central of Georgia Railway Co. v.Price, 106 Ga. 176 (32 S.E. 77, 43 L.R.A. 402); Gulf Ref.Co. v. Shirley (Tex.Civ.App.), 99 S.W.2d 613.
We can not agree with the plaintiff that "Jessie Maddox was a general agent with ample authority to employ Charlie Lee Mitchell as was done in the instant case." The cases cited in the brief of the plaintiff are clearly distinguishable by their particular facts from the instant case.
The relationship of master and servant can not be imposed upon a person without his consent, express or implied. The defendant was free to select his own servant. He was responsible for the acts of his servant within the scope of his employment, but he was not responsible for the act of an assistant permitted without his authority to act for him. Butler v. Mechanics' Iron Foundry Co., 259 Mass. 560 (156 N.E. 720, 54 A.L.R. 849); 7-8 Huddy Automobile Law, § 102, p. 272.
"It is difficult to conceive of a case where the owner of an automobile, used privately, for business purposes, or publicly as a taxicab, could be held liable for an accident caused by the car while *Page 861 operated by a person unknown to the owner and without his express or implied permission. Clear it is, that the agent of the owner, in whatever capacity he is charged with the use or operation of the car, cannot without the knowledge or consent of the owner transmit his agency to a person unknown to the owner, and thereby impose liability on the owner for the reckless or negligent operation of the car." Simon v. City Cab Co., supra.
Even if there was a prima facie inference that the driver in possession of the taxicab was the agent of the owner, it was overcome by the uncontradicted proof that in fact the taxicab was not in the possession of the owner or his servant or agent.
This case is distinguishable from those cases where the agent of the owner was in charge of and driving the automobile at the time of the accident. Here, when the accident occurred the taxicab was being driven by a total stranger — one with whom the owner had no express or implied contractual relation. His possession of the taxicab was not such as in any manner to attach liability to the defendant owner.
We are of the opinion that the evidence did not authorize the verdict, and the trial judge erred in refusing a new trial.
Judgment reversed. Gardner and Townsend, JJ., concur.