CARTER v. BISHOP

Mrs. Delories Bishop, by next friend, O. B. Hamilton, brought an action for damages against Leland E. and Harold Carter, doing business as Carter Trucking Company, for the homicide of her husband, who was alleged to have been killed in a collision between the defendants' truck and an automobile in which he was riding as a guest. Upon the trial of the case the jury returned a verdict for the plaintiff. The defendants' motion for a new trial, based upon the usual general grounds and ten special grounds, was overruled, and the defendants appealed the case to the Supreme Court, which transferred the case to this court. Carter v. Bishop, 209 Ga. 146 ( 71 S.E.2d 216).

Counsel for the defendants state the questions for determination to be these: "1. Where it appears from the undisputed evidence in a case that at the time of an accident, the person operating a vehicle was not the agent or servant of the owner, but was a substitute permitted to drive the vehicle by the owner's employee whose duty it was to operate such vehicle, and where it further appears that the owner did not expressly or impliedly authorize his employee to select a substitute for that purpose, and where it further appears that the selection of such substitute by the owner's employee was in violation of an express rule of the owner forbidding such conduct, is the owner liable for damages caused by such vehicle as a result of the negligence of the unauthorized person who was operating such vehicle at the time?

"2. Where the facts are as stated in question 1 and the evidence is conflicting as to whether or not the motor vehicle was equipped with such lighting devices and reflectors as required by the rules and regulations of the Public Service Commission, would the jury be authorized to find the owner liable without regard to whether the person operating the vehicle was authorized to do so or not?

"3. Where the facts are as stated in question 1 and it appears that after selecting the substitute driver, the regular truck driver went to sleep in the sleeper of the cab and while asleep the accident occurred, might the owner be liable for the conduct of its employee in going to sleep, after having put the substitute in charge of the truck?

"4. Where the facts are as stated in question 1 was it error for the court to charge the jury that if the regular truck driver was asleep in the truck the defendants would be liable notwithstanding the absence of authority of the substitute if the conduct of the regular driver was a failure to exercise ordinary care to supervise and control the conduct of the substitute?

"5. Where the facts are as stated in question 1 would the owner be liable if it should be found that the regular driver was negligent in employing a substitute?

"6. Where the Public Service Commission promulgates rules and regulations with respect to the dimension of trucks, the lighting devices and reflects under the Motor Carrier Act of 1931 and the Motor Common Carrier Act of 1931 as embodied in Chapter 68 of the Code, is the violation of such rules and regulations negligence as a matter of law in view of the following conditions:

"(a) The purported authorization embodied in the Acts of 1931 for the promulgation of rules and regulations although never expressly repealed, yet under the Act 1939 rule-making power with respect to reflectors was delegated to the Department of Public Safety, with the proviso that instead of the violation being negligence as a matter of law, the violation would be prima facie evidence of negligence;

"(b) Under the Act of 1939 the General Assembly of Georgia legislated with respect to the type and character of lighting devices to be placed upon motor vehicles and trucks, prescribing rules differing from those prescribed by the Public Service Commission under the Act of 1931?

"7. Under the facts as stated in question 1 did the court err in refusing to charge the jury that the defendants would not be liable for the conduct of the unauthorized driver?

"8. Under the facts as stated in question 1 and the further fact that after the regular driver absconded, leaving the substitute in charge of the equipment and instructing him to drive the equipment into Atlanta, and after the substitute had done that, the owner by telephone authorized a person in Atlanta to pay the substitute $15 for taking care of the equipment after the wreck and driving it into Atlanta without, at said time, knowing the facts and circumstances in connection with the wreck or who was driving at the time of the wreck, did such conduct constitute ratification of the conduct of the regular driver and of the substitute driver prior to and at the time of the wreck?

"9. Was it error for the court to give in charge to the jury rules and regulations of the Georgia Public Service Commission, and charge the jury that the violation of such rules and regulations would constitute `negligence per se' or `negligence as a matter of law,' when the promulgation of such rules by such commission was inconsistent with and violative of specific provisions of the Constitution of Georgia, as set forth in ground 9 of the amended motion, in part, as follows:

"(a) Section 2-2703 which restricts the Public Service Commission to such powers and duties for regulation of utilities as are `not' inconsistent with other provisions' of the Constitution;

"(b) Section 2-1301 which vests the legislative power of the State of Georgia to make law in the General Assembly which must consist of a Senate and House of Representatives;

"(c) Section 2-101 which reserves to the people all powers of government not specifically delegated by the Constitution;

"(d) Section 2-3001 which vests executive power of the State of Georgia in a Governor and Section 2-3015 which confers upon the Governor the power of veto and revision of all laws enacted by the legislative branch;

"(e) Section 2-1916 which forbids the amendment or alteration of any law unless the amendatory or alteration act distinctly describes the law to be amended or altered;

"(f) Section 2-1913 and 2-1914 which require that all Acts, Bills, or Resolutions `intended to have the effect of law' shall be signed by the President of the Senate and the Speaker of the House, and shall receive a majority vote of all of the members of each house of the General Assembly and shall in every instance so appear on the Journal;

"(g) Section 2-123 which provides that the legislative, judicial, and executive powers `shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided,' when it appears that the rules and regulations of the Public Service Commission of the State of Georgia were promulgated in a legislative capacity, while said commission likewise exercising judicial and executive powers attempted to be conferred upon it by legislative enactments, thus blending in the same person or body of persons the very powers that Section 2-123 says must `forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others?

"10. Did the court err in overruling the objections of defendants to the introduction of the rules and regulations of the Public Service Commission of Georgia in view of the provisions of the Constitution referred to in the next preceding question?"

CARLISLE, J.

1. Each of the numerous constitutional questions raised in special grounds 9 and 10 of the amended motion for a new trial has, in principle, been determined adversely to the defendant in Maner v. Dykes, 55 Ga. App. 436 (3) ( 190 S.E. 189); and see Bass v. Georgia Public Service Commission, 192 Ga. 106 ( 14 S.E.2d 740).

2. By its enactment of 1931 (Ga. L. 1931, p. 199), the General Assembly provided a comprehensive scheme of supervision and regulation of motor-transport traffic for hire over the highways of the State, and vested in the Public Service Commission power to make rules and regulations in respect to such traffic on the highways. Bass v. Georgia Public Service Commission, supra. Section 23 of that act provides: "This Act shall be cumulative to other laws regulating the use of motor-vehicles on the highways." Section 24 (Code § 68-627) provides in part: "The Commission shall have the authority to promulgate rules designed to promote safety, and any such safety rules promulgated or deemed necessary by such Commission shall include the following: (a) Every motor unit and all parts thereof shall be maintained in a safe condition at all times. And the lights and brakes and equipment shall meet such safety requirements as the Commission shall from time to time promulgate."

Pursuant to its power to make rules and regulations, the Public Service Commission promulgated its Rule 48 governing the lighting equipment (including reflectors) required for motor common carriers.

By an act of 1939 (Ga. L. 1939, pp. 295, 299; Code, Ann. Supp., § 68-317) the General Assembly provided, among other things, that: "(a) All vehicles using the public roads and highways of the State of Georgia at night shall be equipped with front and rear reflectors, in addition to the lights required by section 68-316, to serve as a warning signal to drivers of approaching vehicles. (b) The Department of Public Safety is hereby vested with the authority to determine and specify the type of reflectors to be placed on vehicles; to approve reflectors meeting the minimum requirements; and to make such other reasonable rules and regulations needed for the use of said reflectors. (c) The fact that no reflectors, or reflectors failing to meet the minimum requirements and approval of the said Department of Public Safety according to the said rules and regulations of the Department, are on the vehicle, shall be considered prima facie evidence of negligence on the part of the owner of such vehicle."

Counsel for the defendant contend that this latter act of the legislature repealed and superseded the earlier act of 1931 as regards the Public Service Commission's power to regulate reflectors on motor common carriers, and therefore, the trial court erred in charging on the Public Service Commission's rule as to reflectors, and in charging that a violation of that rule would constitute negligence per se. We do not agree.

Repeals of legislative enactment by implication are not favored, and result only where there is an irreconcilable conflict between two statutes on the same subject, or where it is evident that a repeal was intended by the legislature by its passage of a statute purporting to deal exhaustively with a given subject on which legislation already exists. Thomas v. Board of Commissioners of Chattooga County, 196 Ga. 10, 14 ( 25 S.E.2d, 647). There is nothing contained in the Public Service Commission's rule here under consideration which we take to be in conflict with the act of 1939, and while the act of 1939 states that it is applicable to "all vehicles using the public roads and highways of the State of Georgia," the act does not contain language prohibiting the Public Service Commission from making additional requirements insofar as motor common carriers are concerned; and, as we have said, it was provided in the empowering act of 1931 that such act was "cumulative to other laws regulating the use of motor-vehicles on the highways."

It has long been accepted as the law of this State that the violation of a statute by a tort-feasor will, in an action by a member of the class for whose protection the statute was passed, be held to constitute negligence per se or negligence as a matter of law, and the same is true of the rules and regulations of administrative bodies. Maner v. Dykes, supra, and cases cited at page 440. The rule established by the act of 1939, that the absence of the reflectors specified by the Department of Public Safety shall be considered prima facie evidence of negligence on the part of the owner of the vehicle, is a rule of evidence and proof, and does not vary the general rule that a violation of a statute or regulation is negligence per se. Consequently, the trial court did not err in charging the more comprehensive rule of the Public Service Commission or in charging that a violation of that rule would constitute negligence per se, and, indeed, it seems to us that the charge that the violation of the reflector rule of the Public Service Commission is negligence per se was more favorable to the defendant motor common carrier than if the court had charged that its violation constituted prima facie evidence of negligence. Special ground 6 of the amended motion for a new trial is without merit.

3. Under the view which we take of the case, there is one controlling principle of law which disposes of the general grounds and special grounds 1, 2, 3, 4, 7, and 8; consequently, all of those grounds are determined here together.

Counsel for the plaintiff state in their brief that "the plaintiff in this case is predicating her right to recover against the defendant trucking company on the theory that H. M. Tyree, the defendant's duly authorized agent and driver, was negligent in failing to supervise and control the conduct of the substitute driver, Byrd, and the plaintiff is not contending that the negligence of the substitute driver, Byrd, [alone] would make the defendant truck company liable," and counsel for the plaintiff, contending that they are inapplicable, readily concede the validity of the following rules observed in Cowart v. Jordan, 75 Ga. App. 855, 859 (2) ( 44 S.E.2d 840): "`One employed by a servant to assist in the performance of his master's business is not an employee of the master, for whose negligence the master will be liable, unless the servant has authority, either express or implied, to employ help.' 5 Blashfield's Cyclopedia of Automobile Law and Practice (perm. ed.), p. 49, § 2921. 1 Am. Law Inst. Restatement, Agency, § 81, provides: `Unless otherwise agreed, a servant is not authorized to permit or employ another to perform acts of service which he is employed to perform.' In Cooper v. Lowery, 4 Ga. App. 120 ( 60 S.E. 1015), it was held: `If a servant who is employed to do certain work for his master employs another person to assist him, the master is liable for the negligence of the assistant only when the servant had authority, express or implied, to employ him, or when the act of employment is ratified by the master.' The ruling in this case was followed in White v. Levi Company, 137 Ga. 269 ( 73 S.E. 376)."

We have perused a vast number, if not all, of the cases, which have been decided by this court and the Supreme Court, involving substitute agents, employees, and servants, and while some — for example, Cohen v. Whiteman, 75 Ga. App. 286 ( 43 S.E.2d 184); Cowart v. Jordan, supra; and Pearce, Young, Angel Co. v. Ward, 72 Ga. App. 89 ( 33 S.E.2d 39) — would seem to recognize the principle for which counsel for the plaintiff contend, no case in this State, of which we are aware, has either confirmed or condemned its validity. We have, therefore, examined the decisions from those of our sister States where the principle has been applied for some time; and, while those decisions are not controlling authority, they are persuasive and we are impressed by the validity of the reasoning by which the principle became established. In a case strikingly similar on its facts to the present one, the United States Circuit Court of Appeals employed the following reasoning: "Defendant contends that he is not liable for the reason that at the time of the accident the truck was being operated by an unauthorized person. In violation of the rule of defendant, the agent in charge of the truck as driver brought one Knight from Los Angeles and permitted him to operate it part of the time. Knight was at the wheel when the accident took place, and the agent in charge was asleep. But the truck was being operated for the benefit of defendant. The agent was in it and was in charge of it on the business of his principal. He failed to supervise or control the conduct of his substitute immediately prior to the accident. He did not intervene with action, protest or direction when either might have avoided the collision. If he had merely abandoned the wheel or had fallen asleep while driving and the truck and gone to the left side of the road and thus caused the accident defendant would clearly be liable. . . Defendant cannot be heard to escape liability on the ground that Knight was at the wheel while the agent in charge slept beside him in the cab. Geiss v. Twin City Taxicab Co., 120 Minn. 368 ( 139 N.W. 611, 45 L.R.A., N.S., 382); Jones v. Lozier, 195 Iowa 365 ( 191 N.W. 103); Grant v. Knepper, 245 N.Y. 158 ( 156 N.E. 650, 54 A.L.R. 845); Hendler Creamery Co. v. Miller, 153 Md. 264 ( 138 A. 1); Gates v. Daley, 54 Cal.App. 654 ( 202 P. 467)." Cain v. Bowlby, 114 Fed. 2d, 519, 523.

The jury was authorized to find that the tractor-trailer combination involved in the collision belonged to the defendant, that Tyree was placed in charge and control of the vehicle by the defendant, and that the vehicle was being used in the defendant's business and for their benefit at the time of the collision. The jury was also authorized to find that Tyree said he was disabled during the trip which he was making for the defendants, that he allowed or engaged Byrd, who was a stranger to Tyree and the defendants to drive the vehicle from a point in Tennessee to the point of the collision; that it was a rainy day and the visibility was poor; that Tyree directed Byrd to proceed south on U.S. Highway 41, which is a heavily traveled highway, and Tyree then entered the sleeping compartment on the tractor so as to place himself in a position from which he could not observe the highway, the traffic, or the operation of the vehicle, or the condition and operation of the lights on the tractor-trailer combination; that the vehicle did not have on it at the time of the collision the lights and reflectors required by the rules and regulations of the Public Service Commission; that Byrd, who was driving at the time of the collision, suddenly turned the vehicle to his left across the highway and into the path of an approaching automobile; that Byrd did not see the approaching automobile, in which the plaintiff was riding as a guest and over which he had no control, until it was within thirty feet of him; that if Tyree had not been asleep in the sleeping compartment of the vehicle he would have been in better position to control and supervise the operation of the tractor-trailer; that Byrd gave no signal of his intention to turn the vehicle to the left into the path of the automobile, which Tyree, had he been sitting beside him in the cab, should have cautioned him to give; and that Tyree, had he been sitting in the cab could have seen the approaching automobile and could have cautioned Byrd not to turn into its path. The jury was further authorized to find that Ray, the driver of the approaching automobile, was negligent in not seeing the truck in time to avoid colliding with it; and that the defendants were negligent as to the defective lighting equipment on the tractor-trailer. Under this evidence and the principle of law announced above, we think that the verdict for the plaintiff against the defendants was authorized by the evidence, and that none of the portions of the charge complained of in the special grounds indicated above constituted reversible error.

4. In special ground 5 of the motion for new trial, error is assigned upon the following portion of the court's charge: "I charge you, gentlemen of the jury, that if you find from the evidence in this case that Charles Byrd, the driver of the truck, H. M. Tyree, the agent and servant of the defendant, Carter Trucking Company, and Ray, the driver of the car in which plaintiff's husband was riding as a guest, were guilty of negligence, and you further find that the death of plaintiff's husband was the result of the concurring negligence of Byrd, the driver, and Tyree, the agent, and Ray, the driver of the car, then you would be authorized to find a verdict for the plaintiff." This charge states a sound and correct principle of law ( Gooch v. Georgia Marble Co., 151 Ga. 462, 107 S.E. 47), and was authorized by the evidence. Special ground 5 is without merit.

For the foregoing reasons the trial court did not err in overruling the motion for a new trial.

Judgment affirmed. Gardner, P. J., and Townsend, J., concur.