Palmer, Phinizy & Connell v. Heinzerling , 34 Ga. App. 544 ( 1925 )

Jenkins, P. J.

1. “Whetlier or not the owner of an automobile is liable for damage caused by it which results from the negligence of the person operating it depends upon whether the person driving it was the agent or servant of the owner, and engaged upon the business of the owner at the time the negligence occurred. If he was such agent and engaged upon such business, the owner is responsible for injuries to persons or property caused by his negligence in operating the automobile. Aliter if he was not such agent and was not engaged upon such business.” Rape v. Barker, 25 Ga. App. 362 (103 S. E. 171).

2. The Civil Code (1910), § 4268 (8), provides that “Time is not generally of the essence of a contract; but, by express stipulation or reasonable construction, it may become so.” Accordingly, where, under the terms of a special contract of specific employment, the agency was established in order that the agent or servant might take the car to a certain place for the purpose of sale, provided that if he failed to sell it, he would have it back that night before the employer’s garage was closed, time was of the very essence of the conditional employment; and the servant’s authority and the master’s liability were limited accordingly. Emery v. Atlanta Real Estate Exchange, 88 Ga. 321, 326 (14 S. E. 556) ; Morris v. Jackson, 9 Ga. App. 848, 850 (72 S. E. 444) ; Gude v. Bailey, 4 Ga. App. 226 (2) (61 S. E. 135). Such erstwhile master is not liable in damages to a third person for the negligence of the erstwhile servant committed while returning tfie ear two days after the contract of employment expired by its own limitation. Under the circumstances stated, such voluntary and unauthorized retention of the car upon the expiration of the term of employment amounted to a conversion; and while it was incumbent upon the tort-feasor to return the car to its owner (see Cannon v. Goodyear Tire &c. Co., 60 Utah 346, 208 Pac. 519; Cronecker v. Hall, 92 N. J. Law, 450, 105 Atl. 213), in making such restoration he was acting for himself in the performance of a duty imposed by law, and not under a duty emanating from the terminated contract of agency.

Decided November 16, 1925.

3. The case is not one involving the question of a deviation or departure from the business of the master, but is one controlled by the effect of the absolute termination of the servant’s authority under the express terms of his limited and conditional employment. It is a general rule that the master is not liable for the acts of his servant while the servant is stepping aside from the duties of his employment, but is liable if the servant, after stepping aside, has resumed and is again engaged in the conduct of the master’s business. Here, the servant having been engaged to do a particular thing, on condition that it be performed within a particular time, upon his employment becoming terminated no resumption was possible; and it would have taken the consent of both parties to effect a renewal of the relationship. See note in 22 Am. Law. Rep. 1404, 1409; Gude v. Bailey, 4 Ga. App. 226 (2) (61 S. E. 135).

4. Time being of the essence, and being stated as a condition upon which the contract was entered into, and the evidence showing that the contract had been terminated by its own limitation, a verdict for the defendant was demanded.

Judgment reversed.

Stephens and Bell, JJ., concur. Callaway & Howard, for plaintiffs in error.- Pierce Brothers, William H. Fleming, contra.