Lang v. Hitt , 24 Ga. App. 714 ( 1920 )

Broyles, O. J.

1. “In a proceeding under section 20 of the prohibition act approved March 28, 1917 (Ga. L., Ex. Sess. 1917, pp. 7, 16), to condemn a vehicle or conveyance used in transporting any liquors or beverages the sale or possession of which is prohibited by law, the burden is upon the State, the condemnor, to show that such vehicle or conveyance was used in conveying the prohibited liquors or beverages with the knowledge of the owner or ‘lessee.’ ”

2. “Knowledge of the owner or lessee that prohibited liquors were being transported in the automobile is a question of fact, to be determined under the pertinent rules of evidence, as a prerequisite to the right to condemn the automobile in a proceeding instituted for that purpose against the owner or lessee thereof. Such knowledge may be shown by circumstantial as well as direct evidence. \!(a) Whether such knowledge will be presumed as a matter of fact, upon proof of the use of the car by the agent of the owner or lessee for the purpose of transporting prohibited liquors or beverages, is a matter not involved under the question as certified by the Court of Appeals. (6) Knowledge of the agent or servant of the owner or lessee employed to use an automobile for a specified legal purpose only, that prohibited liquors were being conveyed in the automobile, will not be imputed as a matter of law to the owner or lessee thereof.”

3. “Technically, the word ‘lessee’ denotes the holder of a contract for the possession and profits of lands and tenements for a fixed term, for life, or at will (Civil Code, § 3690). By the term ‘lessee,’ as used in section 20 of the above-mentioned act, is meant one who has some property in the vehicle or. conveyance which itself may be the subject of condemnation, as distinguished from a mere ‘bailee’ with a special property in the vehicle or conveyance entrusted to him. (Civil Code, § 3468). The term ‘lessee’ is not to be construed as having the same meaning as the word ‘bailee.’ ”

4. “One who is merely engaged by the owner to drive an automobile, either for a stipulated wage or part of the earnings of the car, is not a ‘lessee’ within the meaning of section 20 of the above-mentioned act.”

5*The above rulings were made by the Supreme Court (149 Ga. 667, 101 S. E. 795) in answer to certain questions certified by this court, and, under them and the facts of the instant eases, the trial judge did not err in directing verdicts for the claimants and against the condemnation of the automobiles.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.