McCord v. McElroy

Felton, C. J.,

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 *175Shropshire v. Caylor, 94 Ga. App. 37, 40 (93 S. E. 2d 586), “The effect of this law 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.” In Carter v. Bishop, supra, the substitute driver had no authority to drive the truck and his driving for the master was not ratified by the master. In this case the driver is indisputably the authorized agent of the master in the operation of the truck and the 1955 law could not make him any more the agent than he already was and could not make him an agent for a different purpose from that of the agency already existing. In my opinion the 1955 act can never be applicable where there is present authorized authority in the person operating the vehicle. It is clear to me that the 1955 act did not expressly or by implication intend to alter or modify the existing law applicable to the relations of parties and duties owed by one party to another. “The primary wrong upon which a cause of action for negligence is based consists in the breach of a duty on the part of one person to protect another against injury, the proximate result of which is an injury to the person to whom the duty is owed. These elements of duty, breach, and injury are essentials of actionable negligence. In the absence of any one of them, no cause of action for negligence will lie.” 38 Am. Jur. 651, 652, Negligence, § 11. “In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy. . .” Code § 102-102 (9). On the question whether a certain provision changes a common-law rule, other related statutory provisions should be considered in ascertaining legislative intent. Rogers v. Carmichael, 184 Ga. 496, 501 (192 S. E. 39). The system of State law is not to be construed by single Code sections or single provisions of the law; the entire system must be construed as a whole to determine the intent and purpose of the law as applied to each particular case or state of facts. Lucas v. Smith, 201 Ga. 834, 837 (41 S. E. 2d 527). It was. held in Carpenter v. Lyons, 78 Ga. App. 214 (50 S. E. 2d 850), and *176other cases, that a driver employed by the owner of an automobile, who invites another as his guest to ride in the automobile without the knowledge, authority, or consent of the owner, is acting outside the scope of his employment and that the owner is not liable on account of the guest’s death caused by the negligence of the driver. The basis for this ruling is that no duty is owed by the owner of the vehicle to the guest. The same rule applies in this case. The owner owed no duty to the person invited by the driver agent. If this act is construed literally, as is being done by the majority, the owner of the vehicle would be liable for damages to a guest invited without authority if a substitute and unauthorized driver himself invited a guest without authority and injured him negligently. Likewise, under such construction as the majority is giving to this act, the owner of a vehicle would also be liable to a person who came upon the vehicle without the knowledge or consent of the driver of the vehicle. Such a construction of the act reads into it a complete change in the law of duties and the persons.to whom they are owed. I do not think that my construction of the act reads anything into it, in view of the court’s duty to construe the statute as the law requires. There is no attempt in the words of the act to define the class of persons the act is intended to benefit and it simply means that the owner of a vehicle is liable to those to whom he would have been liable if specific authority to operate the vehicle had been present and does not cover any other acts of the driver of a vehicle which do not pertain to the actual operation of the vehicle. There was no duty of ordinary diligence on the part of the owner of the vehicle in this case to the plaintiff.