Opinion
33762.
DECIDED OCTOBER 4, 1951.
Damages; from Crisp Superior Court — Judge Horne. July 13, 1951.
O. T. Gower, Harris, Russell Weaver, for plaintiff in error.
Pickett Pickett, Mixon Forrester, John W. Sanders, contra.
The allegations of the petition are sufficient to show that the tort-feasor was, at the time of the commission of the tort, acting as the alter ego of the defendant.
DECIDED OCTOBER 4, 1951.
The petition here alleges that Mrs. Verna Kitchens was proceeding north in an automobile driven by her husband on U.S. 41 when it was rammed from the rear by a 1941 Chevrolet owned by the defendant, John H. Powell, and operated by one J. W. Hood. It is alleged that the automobile in which the plaintiff was riding was properly lighted, and that the negligent acts of Hood as set out in the petition were the sole cause of the collision and consequent injury to the plaintiff. The defendant interposed a general demurrer to the petition contending that the following paragraphs, which comprise all the allegations as to agency in the petition, are not sufficient to render the owner, Powell, liable for the negligent conduct of the operator of his vehicle:
"At said time J. W. Hood, the driver, was an agent and servant of the defendant Powell, in that, at Powell's special request and for his benefit, Hood was using said Chevrolet for the purpose of looking after the welfare and needs of defendant's parents, Mr. and Mrs. John Powell, Sr. and defendant's sister, Mrs. Alta Cook. 23. At said time, Hood, in pursuance of his errand for defendant, was proceeding towards the home of defendant's parents who resided about three miles east of Vienna, Georgia, and Hood was working in the scope of his duty for and on behalf of defendant in that he was going to the home of defendant's parents and defendant's sister to find out if they needed anything and to spend the night with them and to attend to their needs during the night. 24. That the said John H. Powell's parents were of advanced age, being approximately seventy years old and that the defendant's father and sister were sick on the night of November 15, 1950, and had been sick for several days prior thereto and that the said Hood had spent the night with defendant's parents and sister for several nights prior to November 16, 1950 and had carried groceries, medicines and other supplies to the defendant's parents and sister during and for several days prior to November 15, 1950."
The trial court overruled the demurrer and the defendant excepted.
Where, as here, the pleader in seeking to allege an agency relationship sets out the facts as they really exist or are deemed to exist, the allegations that the parties are principal and agent is a legal conclusion which must be tested by the facts as alleged. Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 (1) ( 58 S.E.2d, 559). Code § 4-101 provides as follows: "The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf." In 60 C.J.S., Motor Vehicles, § 436, the following statement is found: "In order to hold the owner liable under the doctrine of respondeat superior for the acts of the driver of a motor vehicle, the driver must be the agent or servant of the owner at the time of the wrongful act, and, in order to create such relationship, the essential and sufficient element is the owner's right to control and direct the driver's conduct. It is not essential that the relationship should be a business one or that the service be a remunerative service. An agency or servant relationship does not depend on an express appointment but may be implied from the circumstances of the case; thus, one driving the owner's car at his request and for his purposes is the owner's servant or agent." Cain v. American Policyholders Ins. Co., 120 Conn. 645 ( 183 A. 403); Manint v. Nugent (La.), 142 So. 201; Wolcott v. Fellows, 82 N.H. 556 ( 131 A. 352); Lea v. Gentry, 167 Tenn. 556 ( 73 S.W.2d 170); Cannan v. Dupree (Tex.Civ.App.), 294 S.W. 298.
It is here alleged that at the defendant's special request Hood was using the vehicle for the purpose of looking after the needs of the defendant's aged parents and his sister, two of whom were ill; that he had been spending the night at their home and carrying them groceries and medicines, and that he was at the time proceeding toward their home to attend to their needs during the night. So far as the allegations of the petition are concerned, it appears that all of these acts were at the defendant's request and for his benefit, and this was the purpose for which the car had been entrusted to him, which purpose he was actually attempting to effectuate at the time of the collision. No other fair inference can be drawn from the pleadings; therefore it cannot be said as a matter of law that the petition fails on its face to show an agency relationship. The petition is sufficient to withstand a demurrer based on the ground that no express command or assent to the particular act of driving at the time and place in question is alleged. See Conney v. Atlantic Greyhound Corp., supra; Planters Cotton-Oil Co. v. Baker, 181 Ga. 161, 163 ( 181 S.E. 671).
The trial court did not err in overruling the general demurrer to the petition.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.