(dissenting).
Vital error against the corporate defendant was committed in charging the jury: “Defendant Randolph would be liable for his own negligence, and the defendant L. A. Wood and Co. would also be liable for acts done by Randolph while acting as its agent within the scope of his authority, as it is stipulated that Randolph was acting as the agent of L. A. Wood and Co. while driving the automobile at the time of the collision”. Timely objection was made by the corporation that there was no such stipulation nor any such evidence, and the stipulation was read to the judge “that the automobile in question was the property of L. A. Wood and Co. and at the time of the accident was engaged in the business of the company”. Wood’s testimony is undisputed that he was the president of the company driving the automobile to Carters-ville, Ga., on an errand of the company, that Randolph was not an employee of the company but was riding at Wood’s invitation, and that Wood a short time before the accident asked Randolph to drive some. The judge adhered to the charge, thinking the facts made Randolph the company’s agent as a matter of law.
The judge was not misled by an ambiguous stipulation, but his attention was distinctly called to his misunderstanding of it, and he refused to correct the charge.
No one contends that the mere ownership of the automobile makes the company liable. There was nothing wrong with' the car. No negligence was found in Wood into whose charge the car was committed; he was absolved personally. Randolph alone was found negligent in running the car *551suddenly against the bicycle. The company was held liable on the ground that Randolph was the agent of the company acting within the scope of his authority, which the judge told the jury was a stipulated fact.
Randolph was never the agent of the company unless Wood’s request that he drive appointed him such. Whether such a request by an agent in charge of an automobile results in charging the principal has been diversely decided. 5 Am.Jur., Automobiles, §§ 382, 383. In Georgia it has long been settled that it depends on the authority of the first driver to employ the second, or on ratification by the principal, and that unless authority or ratification is shown, the principal is not liable for the negligence of the second driver. White v. J. E. Levi & Co., 137 Ga. 269, 73 S.E. 376. Samples v. Shaw, 47 Ga.App., 337, 170 S.E. 389. There may be an implied authority when an emergency renders necessary the aid of another. McGhee v. Kingman & Everett, 49 Ga.App. 767, 176 S.E. 55, one judge dissenting. The general rule is, Delegata potestas non potest delegari.
The law of Georgia governs a tort committed in Georgia and ought to be applied by this federal court in a suit removed to it because of diversity of citizenship. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.
Is it shown that Wood had authority to choose and appoint another driver for the company? There is no proof on the subject except that he was president. The record shows only the order of removal of the case, and it does not appear of what state L. A. Wood and Co. is a corporation, but there could not have been a removal if it were a Georgia corporation. It would seem that the law of Georgia as to the powers of a president would not be controlling, but the law generally recognized would be. According to the general law the president, by virtue of his office, has no authority save to preside at corporate meetings and to represent the corporation in court proceedings. Any further authority comes from statute, or from by-laws adopted by the stockholders, or from the directors, or from the course of business suffered to be done by him. 19 C. J. S., Corporations, § 752. The power to select agents and employees is in the directors, and the president has not that power unless conferred on him. Id., § 1048.
If the law of Georgia be important on this point, I think it is this: By statute since 1938, Georgia Code, Supplement, Sect. 22-1869, “Every corporation shall have a president (who shall be a director), a secretary, and a treasurer, and such other officers as may be provided for in the character or an amendment thereof or in the bylaws. They shall be chosen in the manner and for the terms provided in the bylaws and have such powers and duties as may be prescribed by the bylaws or the board of directors.” The statute as to powers and duties is, I think only declaratory of the general law which before obtained. All the Georgia cases cited in the majority opinion were decided prior to the statute. The Supreme Court has always held that the president as such could not sell corporate property or make corporate contracts, unless such business had been entrusted to him. Bank of Lenox v. Webb Naval Stores Co., 171 Ga. 464, 156 S.E. 30, and the many cases therein reviewed. I have found no case as to his power to employ persons for the corporation. The talk about the president being the corporation’s alter ego has been in reference to his being a proper person to serve with judicial process, Third National Bank v. McCullough, 108 Ga. 249, 33 S.E. 848, or his ability to make admissions which will be evidence against the corporation in court. Franklin Savings & Loan Co. v. Branan, 54 Ga.App. 363, 188 S.E. 67. These seem to be corollaries to the president’s power and duty to represent the corporation in its litigation. These cases relate to presidents of banks, and under the Constitution and laws of Georgia banks stand on a different footing from ordinary corporations.
The plaintiff here, if he would hold the corporation liable, had the burden of proving that Randolph was its agent in driving the automobile, which means that Wood had authority to appoint him such. I do not think the bare fact that Wood was president showed such authority as a matter of law.