Opinion
32276.
DECIDED APRIL 14, 1949.
Damages; from Sumter Superior Court — Judge Harper. October 9, 1948.
J. Frank Myers, H. B. Williams, for plaintiff in error.
Claude N. Morris, contra.
1. Under the allegations of the petition, the managing officer of the defendant corporation was the alter ego of the corporation, and his command in directing its servant to use its truck in transporting the plaintiff's son to and from the State park was that of the corporation itself.
2. The allegations of negligence set out in paragraph 15 and subparagraphs (a), (b), (f), (g), (h), (i), and (j) thereof were sufficient to raise a jury question as to gross negligence on the part of the defendant, and were not subject to the defendant's special demurrer interposed thereto.
3. The court did not err in overruling the defendant's general and special demurrer.
DECIDED APRIL 14, 1949.
Mrs. Lizzie Singletary sued the Sumter Milling Peanut Company Inc., in Sumter Superior Court, to recover damages for the homicide of her son, allegedly caused by the gross negligence of one of the defendant's employees. The petition contains the following allegations: "4. That M. C. Wall is the managing officer of said corporation and as such is vested with authority to control and command the servants, agents, and employees of said corporation. . . 6. That on May 7, 1948, M. C. Wall, acting in his capacity as managing officer of said corporation, did instruct and command the servant, agent, and employee of said corporation, Colonel Nelson, to take a Chevrolet stakebody truck belonging to said corporation and transport a group of Boy Scouts to Chehaw State Park, near Albany, Georgia. . . 8. That the transportation of said Boy Scouts from Americus was with knowledge of said corporation and in furtherance of their habit and policy of permitting and authorizing their managing officer, M. C. Wall, to use the trucks of said corporation as he saw fit. 9. That on May 8, 1948, the said M. C. Wall, again acting in his capacity as managing officer of said corporation and in keeping with the habit and policy of the company of permitting and authorizing him to use said trucks as he saw fit, did instruct and command the aforesaid agent, servant, and employee, Colonel Nelson, to take the same Chevrolet stakebody truck and return to Chehaw State Park, there to pick up the said Boy Scouts and bring them back to Americus. 10. In compliance with said instructions and command, the said Colonel Nelson did again take the said Chevrolet truck and did drive to Chehaw State Park where he picked up the said Boy Scouts and did begin the return trip back to Americus with them. 11. Petitioner shows that on said date, May 8, 1948, her son, Howard Singletary, was one of the aforesaid Boy Scouts and was riding as a guest on the back end of the aforesaid Chevrolet stakebody truck as it traveled towards Americus; and petitioner shows that her son had no control over the driving and operation of the same. 13. Petitioner shows that the said Chevrolet stake-body truck was returning to Americus along and over U.S. Highway Number 19, the Americus-Albany paved highway, and at about 4 or 4:30 p. m., on said May 8, 1948, had reached a point about six miles south of Smithville, in Lee County, Georgia, when the said truck ran off the right side of the paved road and overturned, killing her son, Howard Singletary."
It is alleged that the defendant was grossly negligent in the following particulars: "15 (a) That the defendant, through its managing officer and its servant, agent, and employee, wantonly and recklessly disregarded the well-being of petitioner's son by inviting, allowing, and knowingly permitting him, a minor of tender years, to assume a dangerous and precarious position upon the back of a stake-body truck with the intention, purpose, and attempt to transport him the long and tiresome distance to and from Chehaw State Park, a total distance of approximately 70 miles, and by so doing exposed this child to a peril which did suddenly and abruptly end his life. (b) That the defendant hired, employed, permitted, and commanded an incompetent, inexperienced, unskilled, and highly nervous negro driver to operate its truck along and over the highways of this State with a cargo of irreplaceable human lives, and as a consequence of the careless, unskilled, and irregular handling of said truck the young son of petitioner was killed. (c) That the defendant was grossly negligent in not having a responsible adult person accompany said incompetent, inexperienced unskilled, and highly nervous negro driver on the return trip to Americus with this truckload of little boys whose very lives were dependent upon the safe operation of this truck. (d) That the defendant, acting through its driver, agent, and employee, operated a truck loaded with human beings along and over the highways of this State, knowing or in the exercise of slight care having reason to know that the same was in dangerous mechanical condition and in great need of repairs, and because of these mechanical deficiencies the aforesaid wreck did occur which caused the untimely death of petitioner's small son. (e) That the defendant, acting through its driver, agent, and employee, operated a truck transporting human beings along and over the highways of this State while the same was equipped with defective tires thereby causing a wreck which killed little Howard Singletary, petitioner's minor son. (f) That the defendant, through its driver, agent, and employee, operated a motor vehicle upon a public highway without the same being equipped with efficient and serviceable brakes, and being thus deficient, the driver could not control and stop it, in violation of the laws of Georgia, the same being negligence per se. (g) That the defendant, through its driver, agent, and employee, did carelessly and negligently operate its truck at a rate of speed that was greater than was reasonable and safe and in such manner as to endanger the lives and limbs of the passengers he was transporting, and as a consequence did cause the death of petitioner's son, in violation of the law of Georgia, the same being negligence per se. (h) That the defendant, through its driver, agent, and employee, did drive its motor vehicle upon a public highway in this State in such a careless and reckless manner as to be in wilful and wanton disregard of the safety of persons he was transporting, the same causing the death of an innocent child, in violation of the law of Georgia, the same being negligence per se. (i) That the defendant, acting through its driver, agent, and employee, did regard so lightly the lives of the children he was transporting, that he did negligently and carelessly doze off to sleep and run off the paved road and down an embankment, overturning the said truck and violently crushing and causing the death of petitioner's young son. (j) That the defendant, acting through its driver, agent, and employee, did negligently and carelessly fail to keep said truck under such control that he could bring it to a safe stop when danger threatened, and did thereby kill and destroy young Howard Singletary in a fatal wreck on a public highway in this State." The petition contains other allegations which describe the manner in which Howard Singletary was killed, show his age at the time of death as thirteen, and show wherein the plaintiff was dependent on the deceased, and how he contributed to her support, and the value of his life.
The defendant demurred to the petition on the grounds: (1) that it set forth no cause of action; (2) that paragraph 15 and the subparagraphs a to j thereof should be stricken, for the reason that the allegations therein are mere conclusions of the pleader and are insufficient to show negligence on the part of the defendant on the occasion of the accident referred to in the petition. The trial judge overruled the demurrer, and the defendant excepted.
1. "Every person shall be liable for torts committed by his wife, his child, or his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary." Code, § 105-108. The allegations of the petition show that M. C. Wall was the managing officer of the defendant corporation, and as such was vested with authority to control and command the servants and employees of said corporation, and acting in his capacity as such officer he instructed and commanded the servant of such corporation to take its truck and transport the group of Boy Scouts, including the plaintiff's son, to and from Chehaw State Park, as alleged. Properly construed, we think that the allegations of the petition show that Wall the managing officer, was the alter ego of the corporation, and that his command and acts in using the truck of the corporation in transporting the group of Boy Scouts to and from said State park were those of the corporation. As managing officer of the corporation, he had permission and authority to use the corporation's trucks as he saw fit, and the truck was being operated at his direction and with the knowledge of the defendant at the time the plaintiff's son was killed as alleged in the petition. Under the allegations, we think that the authority of Wall, the managing officer, over the truck in transporting the plaintiff's son, at the time and place in question, was the same as that of the corporation itself. In other words, we think the allegations of the petition were sufficient to show that his authority with respect to the use and operation of said truck was not limited, but that he had as full and complete authority over the truck in that respect as the corporation itself had. See Bussell v. Dannenberg Co., 34 Ga. App. 792 ( 132 S.E. 230); Raleigh Gaston R. Co. v. Pullman Co., 122 Ga. 700, 706 ( 50 S.E. 945).
2. The plaintiff's son was an invitee of the defendant corporation while riding on its truck to and from said State park, and it must appear from the allegations of the petition that his death was the result of gross negligence on the part of the defendant or its servant in the operation of the truck at the time and place in question in order for the plaintiff to recover. This court cannot say as a matter of law that the alleged facts do not amount to gross negligence. But, on the contrary, we think that the allegations of negligence set out in paragraph 15 (a, b, f, g, h, i, and j), when considered with all the alleged relevant facts and circumstances, were sufficient to raise a jury question as to gross negligence on the part of the defendant, and said allegations were not subject to the defendant's special demurrer. In this connection, see Pitcher v. Curtis, 43 Ga. App. 622 ( 159 S.E. 783); Smith v. Hodges, 44 Ga. App. 318 ( 161 S.E. 284); Jordan v. Lee, 51 Ga. App. 99 (3) ( 179 S.E. 739); Capers v. Martin, 54 Ga. App. 555 ( 188 S.E. 465). Subdivisions c, d, and e of said paragraph should be stricken.
3. Therefore, the court did not err in overruling the defendant's general and special demurrer.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232, Code, Ann. Supp. § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.
Judgment affirmed. Sutton, C. J., MacIntyre, P. J., Gardner and Parker, JJ. concur. Felton and Townsend, JJ., dissent.
In order to render a corporation or other principal liable in a case like this, it must appear that the injury occurred while the servant was engaged in the prosecution of the principal's business, or that the principal commanded the act out of which the injury arose. Since it is not alleged in the petition in this case that the driver of the truck was engaged in the business of the corporation at the time of the injury, it must be assumed that the pleader intended to fix liability on the theory that the corporation commanded the act, on the theory that the general manager commanded it as its alter ego. If the petition had simply alleged that M. C. Wall was the general manager and that, in that capacity, he commanded the servant to drive the truck, the allegation would have been sufficient to allege that the general manager was the alter ego of the corporation and that his command was that of the corporation. Bussell v. Dannenberg Company, 34 Ga. App. 792, ( 132 S.E. 230). However the petition proceeds to allege the general manager's authority over the trucks of the corporation, which allegations show that the general manager's authority over the truck was not the unlimited authority of the corporation itself. It is alleged that the general manager was authorized to use the corporation's trucks as he saw fit. Construing the allegation against the pleader, and with nothing else appearing, such an allegation should be construed to mean that the general manager had authority to use the trucks as he saw fit within the orbit of the company's business as dictated by his judgment and discretion, and does not mean that he could use the trucks for his own purposes or purposes foreign to the scope of the business of the corporation. Daniel v. Excelsior Auto Company, 31 Ga. App. 621 (2), ( 121 S.E. 692). Since the petition does not allege facts from which it necessarily must be inferred that the driver was acting in the prosecution of the company's business at the time of the injury, and does not allege that the general manager had as full authority over the trucks as the corporation itself, it fails to set forth a cause of action and the general demurrer should have been sustained.
We express no opinion on the special demurrers.