McCord v. McElroy , 96 Ga. App. 170 ( 1957 )

Nichols, J.

The petition alleged that William L. McCord, Jr., was injured when he was thrown out of, and under the wheels of, a truck owned by the defendants and being operated by their agent, servant and employee in the delivery of milk and statements for the defendants, and that his injuries were caused by the alleged negligence of the said operator of the truck, certain specified acts of negligence being alleged in the petition.

The plaintiff contends that under the act of 1955 (Ga. L. 1955, p. 454; Code, Ann., § 68-301), and under the decision of this court in Shropshire v. Caylor, 94 Ga. App. 37 (93 S. E. 2d 586), a judgment reversing the judgment of the trial court which sustained the defendants’ general demurrer is demanded. The defendants contend that the line of cases exemplified by Carpenter v. Lyons, 78 Ga. App. 214 (50 S. E. 2d 850), wherein it was said at page 218, “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 the owner is not liable on account of the guest’s death caused by negligence of the driver. Beard v. Oliver, 52 Ga. App. 229, 231 (182 S. E. 921); Greeson v. Bailey, 167 Ga. 638 (146 S. E. 490),” controls the present case. These cases, and cases such as Hicks v. Swift & Co., 81 Ga. App. 145 (58 S. E. 2d 256), are based on the premise that where an operator of a motor vehicle owned by his employer permits another to ride in such vehicle in violation of, or without, instructions from his employer he is acting outside the scope of his employment and therefore his master is not chargeable with his negligence should the person so riding be injured.

The act of 1955, supra, places liability on the owner of a motor vehicle in two instances, to wit: (1) When the motor vehicle is being used in the prosecution of the owner’s business, and (2) When the motor vehicle is being operated for the benefit of the owner.

The allegations of the petition in the present case show that the truck, which was owned by the defendants, was being operated by the defendants’ agent in the prosecution of the defendants’ business, and that such use was for the benefit of the defendants. Judge Townsend in Shropshire v. Caylor, 94 Ga. App. 37, 40, supra, said: “The effect of this law [referring to the act of 1955, supra,] 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.” Therefore, it is seen that the gist of this act is to broaden the doctrine of respondeat superior, but it cannot be implied that it was the intent of the General Assembly in enacting this law to place liability on the owner of a motor vehicle in all cases where his motor vehicle is involved in some event where persons or property are injured regardless of whether the motor vehicle was being used for the benefit of the owner or in the prosecution of his business or not. See Young v. Kickliter, 213 Ga. 42 (96 S. E. 2d 605).

The test in the present case is not whether the operator of the motor vehicle was acting within the scope of his employment in permitting the plaintiff to- ride in the truck and to help him in the delivery of milk and statements, but was the truck, at the time the plaintiff was injured, being used in the prosecution of the defendants’ business or for their benefit. Accordingly, inasmuch as the petition alleged certain acts of negligence of the operator of the truck while such truck was being used in the prosecution of the defendants’ business and while such truck was being used for the benefit of the defendants, which negligence was imputable to the defendants', the judgment of the trial court sustaining the defendants’ general demurrer to the plaintiff’s petition must be reversed.

Judgment reversed.

Gardner, P. J., and Carlisle, J., concur. Townsend and Quillian, JJ., concur specially. Felton, C. J., dissents.