Turner v. Southeastern Greyhound Lines Inc. , 74 Ga. App. 548 ( 1946 )

The question here for determination is whether the contract and the evidence created the relationship of principal and independent contractor between Mrs. Andrews and Southeastern Greyhound Lines Inc., as found by the trial court, or whether the relationship was that of principal and agent. Under the contract, Mrs. Andrews had leased the terminal premises and was in the full and complete possession, custody, and control of the terminal and was operating thereon a passenger motor-bus terminal. Under the contract in question, Southeastern Greyhound Lines Inc. pays Mrs. Andrews for services rendered them on the premises which she had thus rented.

In conducting her business therein, she was employed to perform work on terms that she was to be free from the control of the employer as respects the time, method, and manner in which the details of the work were to be executed, as distinguished from the right merely to require certain definite results in conformity with the contract. The contract pays Mrs. Andrews upon a contingent basis; it looks to her only for results, not for the manner or method of accomplishment of the same. It maintains and exercises no control over her work in detail, which she is free to do herself or employ others to do for her. It never conferred upon Mrs. Andrews the authority to hire any employees for it, and it never paid any person working for or under Mrs. Andrews any wages or otherwise. The company continuously regarded Mrs. Andrews as an independent contractor and not as a general agent. It attempted no regulation of her hours of work, the number of employees, or the compensation paid them.

In an opinion rendered by Judge Russell in Young v. Southeastern Greyhound Lines, which is not reported, but was rendered on April 21, 1944, and is now on file in the District Court of the United States for the Northern District of Georgia, Rome Division, this contract now under consideration was before the court there for construction in a wage-and-hour case, in which Mrs. Andrews had employed one Eddie Young as a porter to work in and about the premises and to work and perform the duties of a red-cap. Judge Russell held that the contract created the relationship of principal and independent contractor as between Southeastern Greyhound Lines and Mrs. Andrews, and that she was an independent contractor. While we recognize that this is not controlling upon this court, nevertheless it is persuasive. See, in this connection also, a similar case in Whatley v. Great Southern Trucking Co., 123 Fed. 2d, 143.

The business of Mrs. Andrews was conducted by her employees or by herself when occasion demanded in a building which she had rented and in which she was an operator in the sole possession, custody, and control of the terminal and in which she was operating the passenger-bus terminal. A special agent merely to sell, whether tickets or merchandise, and who does that alone, is not a general agent or otherwise such an agent upon whom service can be perfected and give the court jurisdiction of his principal in a suit for damages.

As to service seeking to bring an alleged principal into court by serving his agent, there must be an agency in fact; service must be on an actual agent. Service of process on a merely apparent agent is not sufficient; and the terminal here in question was the place of business of Mrs. Andrews, an independent contractor, and was not the place of business of the alleged principal. The contract between Southeastern Greyhound Lines Inc., a foreign corporation, and Mrs. Andrews did not make her an agent upon whom process might be served; process can not be served on an apparent agent of a foreign corporation.Burkhaler v. Ford Motor Co., 29 Ga. App. 592 (116 S.E. 333); Dowe v. Debus Mfg. Co., 49 Ga. App. 412 (175 S.E. 676); Georgia Ry. Power Co. v. Head, 150 Ga. 177 (103 S.E. 158).

Hence, I think that service on Mrs. Andrews was not service upon Southeastern Greyhound Lines Inc., under the facts of this case, and that the decision of the court below so holding should be affirmed.