Reddy-Waldhauer-Maffett Co. v. Spivey , 1936 Ga. App. LEXIS 21 ( 1936 )

ON MOTION ROE REHEARING.

MacIntyre, J.

The movant contends: "The plaintiff, in attempting to establish the liability of Reddy-Waldhauer-Maffett Company, did not rely solely on the relationship of master and servant between it and Burnsed. The plaintiff asserted that the owner of the truck was [also] liable on the theory that it permitted a defective vehicle to be placed in the hands of another party, and that under the familiar rule of law it is responsible for injuries proximately resulting from the use of such a vehicle. The defect alleged was the absence of a proper red rear light.” We had thought that the second headnote and the opinion covered the point raised in the motion for a rehearing. However, it may not be as specific as it should have been with reference to this point. We therefore say that on the night when the collision occurred the vehicle had not been placed in the hands of the employee (Burnsed), but on the contrary Burnsed had taken and used the car when he was not permitted to do so; and even if the owner knew that the car was out of repair in that no rear' red light was attached as required by the statute, but, on the night in question, did not know that the employee would use the car, it would not create a liability on the part of the owner. The use of the car during the interval referred to in headnote 2, and on the trip to and from Burnsed’s brother’s house, was without the knowledge or consent of the owner, and was entirely unauthorized. We can not approve so broad a ground of liability on the part of automobile owners as is contended for by the movant. In these circumstances, the fact that the machine was defective in that it did not have a rear red light attached when being driven by Burnsed at night does not make an exception to the general rule that the owner of a car who was not present at the infliction of air injury can not be made liable, except it be shown that the person in charge not only was the agent of the owner, but also was engaged at the time in the business of his master. In short, at the time of the collision Burnsed was not permitted to use the car. He was using it without the knowledge, consent, or authority of the owner. He was not the agent of the owner on this trip, nor was he engaged in the business of his master. The fact that the defect in the car was that it did not have a rear red light attached, even if known to the owner, would not in this case create a liability on the part of the owner, where the owner on the night in question did not know the employee would use the car. See Gordon v. Texas & Pacific Mercantile &c. Co. (Tex. Civ. App.), 190 S. W. 748; 7-8 Huddy’s Enc. (9th ed.) 251 (76).

Rehearing denied.

Broyles, G. J., and Guerry, J., concur.