Greeson v. Bailey

Gilbert, J.

A proper construction of the question will greatly simplify our task. The question presents three facts upon which the answer depends. (1) A servant drives his master’s automobile from one place to another. In doing this he is “acting within the scope of his employment.” (2) While driving from place to place he permits another person to ride with him in the car. In such permission he “exceeds his authority.” (3) While acting as stated he willfully and wantonly injures the person riding with him. In such circumstances is the master liable to the injured party? It is the practice of this court to look no further than the question propounded, to ascertain the facts. Construing the facts recited in the question most strongly against the person suing, it must be assumed that the injured party was riding in the car without the knowledge and against the consent of the master. Indeed it must be inferred that he obtained the ride as the result of his own seeking. The law of master and servant applies. Every person is liable for the torts committed by his servant by his command or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary. Civil Code (1910), § 4413; Fielder v. Davison, 139 Ga. 509 (77 S. E. 618). If injury is done by the servant not in the proseadion or scope of his business, the master is not liable. It follows from the principles stated that three facts must coexist to constitute liability. (1) The relation of master and servant. (2) The servant must be acting both in the prosecution and within the scope of his business. (3) Injury. The question propounded settles for us (1) and (3). It only remains to discuss (2). The principles of law applicable to this case are not the same as those in ordinary cases of personal injury by servants and employees of railroad companies. The liability of railroad companies has been extended by the Civil Code (1910), § 2780. This section applies to street-railways. Cordray v. Sav. &c. Ry. Co., 117 Ga. 464 (2) (43 S. E. 755). Even in the case of a railroad company a sharp line of distinction is drawn where the employee, engaged in his duties, exceeds his authority. Georgia R. &c. Co. v. Wood, 94 Ga. 124 (21 S. E. 288, 47 Am. St. R. 146); Lynch v. Florida &c. R. Co., 113 Ga. 1105 (39 S. E. 411, 54 L. R. A. 810). In Waller v. Southern Ice &c. Co., 144 Ga. 695 (87 S. E. 888), this court dealt with a case like the present one. The driver of an automobile truck permitted a nurse, and a child to ride upon the running-board, and the child fell under the wheels of the truck and was killed. This court held that the master was not liable, upon the ground that the action of the driver in giving permission to the child to mount the running-board and in allowing the nurse and child to ride was entirely without the scope of his duties as the employee of the owner of the truck. See the authorities there cited. That case was followed and approved in Murphey v. New South Brewing &c. Co., 145 Ga. 561 (89 S. E. 704). Both cases were full-bench decisions.

“The driver of a motor-vehicle, in the absence of express or implied authority from the owner to permit third persons to ride therein, is ordinarily held to be acting outside the scope of his employment in permitting them to do so. Hence, so far as the operator of a motor-truck is knowingly carrying a child in a position of danger, he will be regarded as acting beyond the scope of his employment.” 42 C. J. 1104, § 865. See also Atlantic Ref. Co. v. Sheffield, 162 Ga. 656 (134 S. E. 761). “If a servant steps aside from his master’s business, for however short a time, to do an act entirely disconnected from it, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not liable.” Savannah Electric Co. v. Hodges, 6 Ga. App. 470, 472 (65 S. E. 322). In a well-considered opinion by Judge Bussell the principle just quoted is elaborately argued and supported by decisions of this court and courts of other jurisdictions. A street-railway company was sued for damages arising out of personal injuries. In the opinion it was said: “What, then, is the test by which it should be determined whether the act of the servant was within the scope of his employment? Judge Thompson, in his Commentaries bn the Law of Negligence, volume 1, § 526, says: £ The test by which to determine whether the master is liable for the tortious act of his servant is not whether it was done during the existence of the employment, that is to say, during the time covered by the employment, but whether it was done in the prosecution of the master’s business. Upon this subject it has been said: “In determining whether a particular act is done in the course of the servant’s employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time when the injury was inflicted, acting for himself and as his own master pro tempore, the master is not liable. If the servant steps aside from his master’s business, for hoivever shoH a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities.’”” See other authorities cited, 6 Ga. App. 477. The servant acted not in the prosecution of and not within the scope of his business, and the master is not liable. Where the servant acts not in the prosecution of his master’s business or within the scope of such business, the master can not be held liable, no matter how wanton or willful the conduct of the servant. In other words, to constitute liability on the part of the master, it must be shown that the act was within the prosecution or scope of the master’s business, no matter what the degree of negligence. Whether the master was negligent in employing an undependable and careless servant is not here involved. We must assume from the question that there was no allegation to that effect. It would violate both reason and justice to hold that the absent owner of an automobile, having no knowledge that his servant would, without his consent or in disobedience to his orders, permit another to ride in his automobile, not operated for hire, may be liable for injury to such third person. Certainly the injured party was in a better position to save himself from harm than was the absent master. When he entered the automobile he must have been aware that he was inducing the servant to exceed his authority and to act contrary to the wishes of the master, and also that under the known automobile usage he was, as to the master, assuming the incident risks.

It would extend this discussion to unpardonable length to discuss the numerous decisions and texts which are not binding on this court.

All the Justices concur, except