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HOTEL STORAGE, INC. v. FESLER et al.
BEVERAGE SALES COMPANY, INC. v. FESLER et al.
44459.
44472.
Action for damages. Savannah City Court. Before Judge Oliver.
QUILLIAN, Judge.
1. The plaintiff sought damages for injuries sustained resulting from the alleged negligent operation of an automobile by a doorman of a hotel while parking a car belonging to the defendant B Corporation. The proof adduced on motion for summary judgment showed that the doorman was not acting as a servant of B Corporation and thus it was not liable.
2. The defendant H Corporation, in the business of storing automobiles for guests of the hotel, failed to establish as a matter of law that the doorman was not acting as its employee or servant. Thus the trial judge did not err in denying its motion for summary judgment.
Frank E. Fesler brought this complaint in the City Court of Savannah against Joseph S. Watts, Beverage Sales Company, Inc. (hereinafter referred to as Beverage Sales), the Manger Savannah Corporation d/b/a Hotel Manger and Manger Hotel (hereinafter referred to as Manger), and Hotel Storage, Inc. The complaint sought damages for injuries sustained by the plaintiff resulting from the alleged negligent operation of an automobile by Joseph Watts while he was acting as an employee and agent and servant, and was engaged in the course and scope of business, of Beverage Sales, Manger and Hotel Storage.
After answers were duly filed, Hotel Storage filed a motion for summary judgment and alleged that the proof showed as a matter of law that Watts was not its agent, servant and employee at the time of the incident and was acting outside the scope of his employment and without its authority. Beverage Sales likewise filed a motion for summary judgment on the grounds the evidence showed that Watts was not its employee and that in fact the only relation between Watts and it was that of bailor and bailee. After considering the pleadings, depositions and affidavits, the trial judge entered orders in which both motions for summary judgment were denied.
Hotel Storage appeals from the order denying its motion for summary judgment in Case 44459, while Beverage Sales appeals from the order adverse to it in Case 44472.
The facts giving rise to both cases are substantially the same and succinctly stated are as follows: Watts served as doorman at the entrance to the Manger Hotel. He wore the uniform and cap supplied by the Manger with the emblem "Manger Hotel and Doorman." The Manger supplied and cleaned the uniforms and caps and provided him with a locker. Hotel Storage paid him a salary of $25 a week and he was allowed to keep tips or gratuities. As part of his duties he unloaded bags, moved cars, opened doors of cars at the hotel, and maintained a ticket system whereby vehicles of guests in the hotel were stored by Hotel Storage.
Watts in his deposition related that he customarily took care of vehicles of certain persons who came to the hotel to transact business but were not overnight guests of the hotel. He stated that he had been parking the automobile of Hunter Leaf, an employee of Beverage Sales, for a long time; that Leaf would come by the hotel and leave his car in Watts' care; that Leaf customarily tipped him. On the day in question, Leaf came by, left his car, and either nodded or stated "take care of the car for me," leaving the car in Watts' care; shortly thereafter, Watts while endeavoring to move the car struck another vehicle which hit the plaintiff and injured him.
1. The appellant, Beverage Sales, contends that the evidence shows that the relation which existed between Leaf, its employee, and Watts was a bailment. On the other hand the plaintiff, appellee here, argues that Watts was a servant of Leaf since Leaf tipped Watts, had the right to retake his car at any time and could have discharged Watts "from the assignment of taking care of the car any time he pleased."
The question for determination is whether Leaf and Watts occupied the status of master and servant because as a general rule an owner of an automobile is not liable for the negligence of the operator merely because he consented to its operation by such person. The relationship of master and servant must exist between the owner and the operator of the car in order to render the owner liable, under the doctrine of respondeat superior, for the negligent conduct of the operator. Graham v. Cleveland, 58 Ga. App. 810, 811 (200 SE 184). "An employer is not liable for acts of his independent contractor unless the facts and circumstances bring the case under the exceptions to such rule, plainly and unmistakably stated in Code 105-501, 105-502." Robbins Home Improvement Co. v. Guthrie, 213 Ga. 138, 139 (97 SE2d 153). See Dekle v. Southern Bell Tel. &c. Co., 208 Ga. 254 (66 SE2d 218). There are no facts of this nature. The only other theory under which an owner might be liable is that of negligent entrustment. NuGrape Bottling Co. v. Knott, 47 Ga. App. 539 (171 SE 151); Saunders v. Vikers, 116 Ga. App. 733 (158 SE2d 324). Facts sustaining this theory are likewise non-existent in this case.
In determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract. Hall v. Cassell, 79 Ga. App. 7 (52 SE2d 639); Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549 (43 SE2d 784). While several facts have been cited as indicative of the relationship created, the key factor is the power to control and direct. Here the proof adduced shows clearly and unequivocally that Leaf did not control the manner and method of executing the work but only required of Watts certain definite results, to wit: that the car be returned to him when he was ready to leave. This, in essence, is the same relation that results from any parking arrangement with a garage, place of storage or parking lot and, absent special circumstances not appearing here, does not create the relation of master and servant so that the doctrine of respondeat superior applies.
Hence the trial judge erred in denying Beverage Sales' motion for summary judgment.
2. The defendant, Hotel Storage, urges that Watts acted outside the scope of his employment and that at most he was its general servant loaned to Manger who was consequently liable for his acts.
It is true as a basic proposition that when one lends his servant to another for a particular employment, the servant will be dealt with as a servant of the man to whom he is lent although he remains the general servant of the person who lent him. Travelers Ins. Co. v. Clark, 58 Ga. App. 115, 122 (197 SE 650); Blakely v. U. S. Fidelity &c. Co., 67 Ga. App. 795, 797 (21 SE2d 339). Fulghum Industries v. Pollard Lumber Co., 106 Ga. App. 49, 52 (126 SE2d 432), pronounces the test to be applied in ascertaining if one is a loaned servant: "(1) that the special master must have complete control and direction of the servant for the occasion; (2) that the general master must have no such control; (3) that the special master must have the exclusive right to discharge the servant, to put another in his place or to put him to other work." The case further points out that "control is the determinative factor."
This point is further elucidated in Blashfield's Treatise on Automobile Law and Practice, Vol. 6, 253.113 at p. 302. "Notwithstanding in doing an alleged negligent act one ordinarily cannot be the servant of both a general master and a temporary master, it may be found that there was a dual agency and that the employee in question was the servant of both the general and the special employer because the purpose and business of each was being furthered and each had some control over the activity which occasioned the injury. . . It is not necessary that full control of the servant be retained by the general employer in order to impose liability on him, and, where an employee is furthering the business of his general employer by services rendered to another, there is no inference of a surrender of control by the general employer by the mere fact of its division."
The Georgia courts have recognized the principle that one may be the servant of joint masters and subject to the demands of both or either. Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (2), 600 (124 SE 92); Allen v. Landers, 39 Ga. App. 264, 265 (146 SE 794). In the Hotel Equipment case, the court cited with approval various foreign authorities and reiterated that where the dual or joint master-servant relation exists the fact that the servant was performing a particular service for one of his masters at the time he inflicted an injury would not relieve the other master from liability for his acts.
On motion for summary judgment the burden is on the movant even as to matters which would be upon the opposite party on the trial. Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205, 206 (163 SE2d 256). Hotel Storage failed to establish as a matter of law that it was not a dual master of Watts who, along with the Manger Hotel, received concomitant benefits from Watts' services; that Hotel Storage's purpose and business was not furthered by Watts' act, and that Hotel Storage had no control over the activities which occasioned the injury. This being true, the issues were properly left for determination by a jury.
Moreover, under the evidence Watts was authorized to accept vehicles but according to an affidavit by an officer of Hotel Storage, he was not authorized to accept vehicles for any purpose except storage for a guest who had registered and had a room assigned to him. "Where the employee is acting within the class of service he has authority to perform, the master is bound even though the servant is forbidden to perform the particular act. . . Thus even though the employee may have violated his instructions or exceeded in some respects the boundaries of his authorized acts, the master is still bound where the disobedience is not such as to take him out of the scope of his employment." Southern Airways v. Sears, Roebuck & Co., 106 Ga. App. 615, 620 (127 SE2d 708). Whether there was such a departure from his authorized duties also would be for the jury.
Judgment reversed in Case 44472; armed in base 44459. Pannell and Evans, JJ., concur.
Pierce, Ranitz, Lee, Berry & Mahoney, Thomas J. Mahoney, Jr., for Fesler.
Falligant, Doremus, Karsman & Maurice, Robert E. Falligant, Jr., Stanley Karsman, for Beverage Sales.
Brannen, Clark & Hester, Perry Brannen, for Hotel Storage.
ARGUED MAY 5, 1969 -- DECIDED OCTOBER 24, 1969 -- REHEARING DENIED NOVEMBER 20, 1969 -- CERT. APPLIED FOR.
Friday May 22 17:25 EDT


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