Delcher Bros. v. Reynolds & Manley Lumber Co. , 80 Ga. App. 288 ( 1949 )

The court did not err in sustaining the general demurrer to the petition as amended for the reasons stated in division 2 of the opinion.

DECIDED OCTOBER 28, 1949. Delcher Brothers Storage Company brought an action for damages against Reynolds Manley Lumber Company and I. E. Richards in the City Court of Savannah. The allegations of the petition were substantially as follows: On November 9, 1945, at approximately eight o'clock at night, one of the plaintiff's trucks, driven by one of its employees, B. H. Reece, was traveling south on U.S. Highway No. 17, four miles north of Darien, Georgia, at the rate of about thirty-five miles per hour. The truck was being driven in a safe and normal manner, and was on its side of the center line of the highway. The driver of the plaintiff's truck saw the lights of another vehicle approaching from the opposite direction and pulled the plaintiff's truck as far as possible to the right of the highway to avoid a collision. The Reynolds Manley truck, driven by Ephrim Richardson, was towing an International truck, owned by I. E. Richards and driven by Elbert Lee Rhodes. Both of the trucks of the two defendants were being operated for business purposes of the owners thereof. The driver of the plaintiff's truck was able to avoid a collision with the Reynolds Manley truck, but the Richards truck was approximately 3.26 feet over the center line of the highway and a collision between the plaintiff's truck and the Richards truck occurred at that point. The driver of the Reynolds Manley truck was under the influence of intoxicating liquors and at the time of the accident was in control of the movements of the truck of the individual defendant, Richards. The plaintiff's truck was damaged in a named amount at a result of the following acts of negligence of the drivers of the trucks of the two defendants. The driver of the Reynolds Manley truck was negligent in driving upon a highway of this State in an intoxicating condition; in failing to control the Richards truck, which he was towing. The Richards driver was negligent in permitting the Richards truck to be towed across the center line of the highway without immediately calling this fact to the attention of the Reynolds Manley Driver; in permitting the truck to be towed by an intoxicated driver; and, in permitting the truck to be towed without headlights. Reynolds Manley demurred on the grounds that the petition set forth no cause of action as to it; the petition shows on its face that that defendant's employee was not acting within the scope of his employment; and that the allegation that the trucks were being operated for the business purposes of the owners thereof was a conclusion of the pleader, and the court entered the following order: "The towing [of] a broken-down automobile of a stranger not being ordinarily within the scope of employment of the truck driver of a lumber company, the said demurrers are hereby sustained except as to individual defendant unless some circumstances are set out by amendment to show how, why and in what manner the act of towing the automobile of the individual defendant was within the scope of employment of the corporate defendant. It being within the duty of the individual defendant to have his truck towed if possible, the allegation as to the individual defendant is sufficient. The plaintiff is allowed ten days to amend as to the corporate defendant; in the event of failure to amend, the petition will stand dismissed as to the corporate defendant." To meet this order the plaintiff added the following allegations by amendment: "I. E. Richards was on November 9, 1945, operating a business as a timber logger. On that date he was cutting timber into logs in the woods, having these logs placed in a truck and then delivering said logs to Reynolds Manley Lumber Company for sawmilling purposes. He was paid on that date by Reynolds Manley Lumber Company at a stated rate per thousand feet of logs delivered to it. He had for many years prior to the year 1945 been a timber logger for Reynolds Manley Lumber Company. Richards, because of such relationship was and had been well known to the officials of Reynolds Manley. On the date of the alleged accident, Reynolds Manley, in addition to its plant in Savannah, was operating a small sawmill at Hayner, Georgia, approximately twenty miles from Brunswick, Georgia. On the same date and for many months prior thereto Richards had been working as a logger in this location. The Richards' operation at Hayner on November 9, 1945, consisted of cutting logs and transporting such logs to the Reynolds Manley sawmill for cutting into timber. Both of the trucks involved in the alleged accident were, on the date of the alleged accident, and had been for some time past, actively engaged in the furtherance of the sawmill efforts of Reynolds Manley Company. On the date in question, November 9, the truck of I. E. Richards broke down in the woods where his employees were obtaining logs for cutting and this breakdown handicapped the sawmill operations of Reynolds Manley Lumber Company. Richards instructed the Reynolds Manley Lumber Company employee, Ephrim Richardson, to tow the truck, using the Reynolds Manley Lumber Company's truck, from Hayner, Georgia, to Savannah, Georgia, to be repaired at the International Harvester Company in that city. The Richards truck was attached to the Reynolds Manley Lumber Company truck at Hayner, Georgia, and was towed in this manner until the time and place of the accident. The prompt repairing of the Richards truck would have assisted in a continued and uninterrupted operation of the Reynolds Manley plant at Hayner, Georgia, and such action on the part of Richards has been recognized by the officials of the Reynolds Manley Lumber Company." Reynolds Manley objected to the allowance of the amendment on the grounds that the amendment did not meet the ruling of the court and that the amendment showed on its face that the operator of the Reynolds Manley truck was acting beyond the scope of his employment. The court entered the following order: "The general demurrer to the amended petition so far as it affects the Reynolds Manley Lumber Company is hereby sustained and the petition dismissed as to the defendant, Reynolds Manley Lumber Company," and the plaintiff excepted. The plaintiff also excepted to the earlier ruling on demurrer. 1. The plaintiff's exception to the court's first ruling on the demurrer is futile and cannot be considered. "A plaintiff who submits to a ruling that his petition is subject to general demurrer, and that unless, within a designated time, it be so amended as to show a cause of action, the case on a named date will be dismissed, and who thereupon, in an effort to meet the ruling, amends his petition, will not thereafter be heard to say that the amendment was unnecessary." Collins v.Myers, 28 Ga. App. 457 (111 S.E. 686), Lane v. The MurrayCo., 63 Ga. App. 844 (12 S.E.2d 492), Rome Railroad Co. v. Thompson, 101 Ga. 26 (28 S.E. 429), Clark v. Long,25 Ga. App. 807, 808 (105 S.E. 654), and citations. Whether or not the petition as originally filed stated a cause of action, the law of the case as established by the ruling of the court, is that it does not, and the only question remaining is, therefore, did the amendment offered by the plaintiff meet the order of court and show that the towing of the Richards truck was within the scope of the business of the defendant Reynolds Manley Lumber Company?

2. If it be conceded that Richards, the individual defendant, was an independent contractor, and counsel for the plaintiff makes the concession, and if the allegations of the amendment are construed most strongly against the pleader, as they must be on demurrer, the amendment does not meet the ruling of the court by showing "how, why and in what manner the act of towing the automobile [the truck?] of the individual defendant was within the scope of the employment of the corporate defendant [Reynolds Manley]." The total effect of what is alleged in the amendment is that Richards, an independent contractor, borrowed Reynolds Manley's truck and one of Reynolds Manley's employees and Reynolds Manley ratified his action. "``The master's responsibility cannot be extended beyond the limits of the master's work. If the servant is doing his own work or that of some other, the master is not answerable for his negligence in the performance of it.' Standard Oil Co. v. Anderson, 212 U.S. 215,221 (29 Sup. Ct. 252, 53 L. ed. 480). ``It is well settled that the "fact that an employee is the general servant of one employer does not, as a matter of law, prevent him from becoming the particular servant of another, who may become liable for his acts. And it is true as a general proposition that when one person lends his servant to another for a particular employment (or hires him), the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent (or hired), although he remains the general servant of the person who lent him (or hired him)."' 18 R. C. L. 784." BibbManufacturing Co. v. Souther, 52 Ga. App. 722 (184 S.E. 421). The special master is alone liable to third persons for injuries caused by such wrongful acts as the special servant may commit in the course of his employment. Reaves v. ColumbusElectric Power Co., 32 Ga. App. 140, 148 (122 S.E. 824). The amendment, therefore, negatives the idea that the driver of the truck was within the scope of Reynolds Manley's employment at the time of the injury. He was in the special employment of the defendant Richards, and Richards was admittedly not an employee of Reynolds Manley. The court did not, therefore, err in sustaining the general demurrer to the petition as amended.

Judgment affirmed. Gardner and Townsend, JJ., concur.