The court did not err in granting a nonsuit as to the four counts of the petition, I, II, III and V, on which the case was tried.
Jocie Motor Lines, Inc., sued Burns Brick Company, J. M. Jackson and Eddie Campbell for damages to its truck and to a cargo belonging to the plaintiff's bailor allegedly caused by the negligence of the defendants in the operation of a truck owned by Jackson and operated by Campbell while returning to Macon from Toccoa after having hauled a load of brick for the Burns Brick Company. The petition as amended was in five counts. The defendants demurred to the petition as a whole and to each count. Burns Brick Company's general demurrer to count IV was sustained and no exception taken. Burns Brick Company excepts by cross-bill to the overruling of its general and special demurrers to counts I, II, III and V. The case was tried and resulted in a nonsuit as to Burns Brick Company and a mistrial as to the other defendants, the plaintiff having elected not to proceed against the remaining defendants Jackson and Campbell. The plaintiff moved to reinstate the case as to Burns Brick Company. The exception here on the main bill of exceptions is to the judgment refusing to reinstate the case as to Burns Brick Company.
Statement of pleadings as to questions to be decided.
Count I as amended alleged that there was a conspiracy between Burns Brick Company and Jackson, the owner of the truck, to violate the laws of Georgia by an agreement or arrangement whereby the brick company could obtain the transportation of its brick products more conveniently and cheaper than could be obtained from a qualified motor carrier for hire and that the negligence of the driver for Jackson would be imputable to Burns Brick Company since it occurred on a trip made in pursuance of the conspiracy. It alleged that Jackson operated state-wide when he had no certificate from the Public Service Commission authorizing it; that he did have a Class "B" certificate, issued June 23, 1950, authorizing transportation of commodities under Rule 8 of the Commission, except household goods, between points within the highway mileage radius of 150 miles of Winder, Georgia, over no fixed route and that Burns Brick Company knew that Jackson did not have a certificate to transport brick for it as a private carrier or otherwise at rates privately agreed upon.
Count II alleged that the defendant Campbell was a joint agent and servant of Jackson and Burns Brick Company, subject to the direction and control of each and was at all times acting within the course and scope of his employment and in the prosecution of his principals' and masters' business. Count III alleged that the operation of the truck by Jackson under the alleged conspiracy was a joint venture of Jackson and Burns Brick Company for their "mutual benefit" and was subject to the control of each. Count V alleged that Jackson was employed by Burns to operate a delivery service for Burns Brick Company and that Jackson and the brick company agreed that Jackson would engage drivers of the vehicles used in such deliveries and that Campbell was one of the drivers engaged by Jackson with the knowledge and consent of Burns.
The following facts are uncontradicted:
1. Defendant Jackson was the sole owner of the truck involved in the collision with that of the plaintiff, and Burns Brick Company had no interest in it.
2. Defendant Campbell was employed solely by Jackson as driver of the truck and received no compensation from Burns Brick Company.
3. Jackson's Certificate of Public Convenience and Necessity was issued to J. M. Jackson, doing business as J. M. Jackson Transfer, 225 West May Street, Winder, Georgia, and authorized him to transport goods, including brick, within a radius of 150 miles of Winder, Georgia, over no fixed route.
4. Burns Brick Company had never seen the Jackson certificate and did not know its terms.
5. The Jackson trucks had Georgia Public Service Commission Tag No. 1639 attached to them which contained no notice of any limitation as to Jackson's authority to transport goods and the brick company knew that Jackson's trucks were equipped with Georgia Public Service Commission tags.
6. The rates paid Jackson for transporting Burns' brick were railroad rates plus $3.00 per thousand brick, the same rates which were paid to other Class "B" motor carriers which transported brick for Burns Brick Company, and which were in excess of the rates prescribed by the Georgia Public Service Commission.
7. Jackson had filed no tariff with the Georgia Public Service Commission.
9. Jackson did not use regular bills of lading as prescribed but used invoice forms provided by Burns Brick Company but the brick company did not know that the Georgia Public Service Commission required bills of lading.
10. Whether the brick company shipped brick by rail or truck the brick company loaded the cars or trucks and trailors.
11. When Jackson happened to be absent when his trucks were loaded the invoices were made out by a brick company representative.
12. An important part of the business of the brick company is the prompt and competitively priced delivery of brick to its customers, including the unloading and stacking of the brick at a delivery point or points or "job sites" designated by the customer. This service related to delivery within the limits of the City of Macon as well as to places outside of Macon, including points beyond a 150-mile radius of Winder, Georgia, and which type of service was rendered by Jackson.
13. Historically, Burns Brick Company prior to 1948 or 1949 first performed the transportation service with its own equipment and employees and then with its own equipment but with alleged independent contractors. The delivery service arrangement was oral and began at an indeterminate time. Jackson at that time was engaged in the trucking business at Winder without a license. Jackson first got a common-carrier certificate based on Winder sometime in 1950 or 1951 at about the time he began hauling bricks for Burns Brick Company state-wide.
14. Jackson and Burns Brick Company made an agreement that, if Jackson was caught and fined for an overloaded truck in instances where the overload had been directed by Burns Brick Company, Jackson would contribute toward the fine the portion of the rail rate attributable to excess load plus the $3.00 per thousand for unloading and stacking the brick at destination, and Burns Brick Company would pay the balance of the fine.
15. Jackson received a check from Burns Brick Company every Friday, at the same time that the admitted employees of the company were paid. The check was for a lump sum, without itemization, and bore only the notation, "truck delivery."
16. The only document used in connection with any shipment was a "delivery ticket" which was given to the driver of the particular vehicle being used, sometimes by Jackson but more frequently by officers and agents of Burns Brick Company. These tickets were signed by the customer of Burns Brick Company in acknowledgment of delivery and bore the notation, "All claims and returned goods must be accompanied by this bill". This system of delivery tickets, with some insignificant changes in the size, form and number of copies, was identical with that used by Burns Brick Company in the two earlier phases of its delivery service. The drivers of the brick trucks made collections C. O. D. shipments and received and transmitted directly to Burns Brick Company such payments as well as customer complaints. The drivers also delivered brick samples to customers of Burns Brick Company. (Whether the sample delivery was compulsory does not appear.)
17. Burns Brick Company loaded the brick on the delivery trucks and decided how many brick to put to each load no matter whether the weight of the load was legal or illegal, controlled the time for departure of the shipment when timely arrival for receipt was in question and sometimes, when one route would be nearer or more convenient for delivery at a particular job site, directed the route of travel to be taken, but the drivers could go any route they pleased.
18. All trucks used in the Burns Brick Company delivery service were painted red and were painted with signs from stencils already made up with the words "Burns Brick" or the slogan "Burns Brick Build Better Buildings" on the trailer and the quoted slogan on the cab. The paint was furnished by Burns Brick Company and the signs were painted at its expense. Jackson's name was also painted on the body of the trucks.
19. Other than his home, the only office maintained by the defendant Jackson was at the plant of Burns Brick Company.
21. With reference to the agreement on fines if Jackson was caught and fined for overloading: Burns Brick Company loaded the brick on the trucks. There is no evidence that the company could require Jackson to carry an overload with Jackson's consent. The loads were not weighed at any time at the point of loading and there is no evidence that any truck of Jackson's was ever deliberately overloaded after the agreement was made. He was never caught overloading or fined therefor. On the trip on the return phase of which the collision involved in this case occurred there was no overload and the truck was empty when the collision occurred.
1. The court did not err in granting a nonsuit as to Burns Brick Company on count 1. Although there are some circumstances shown by the evidence which may raise a suspicion, there are no circumstances which are not consistent with the hypothesis that there was no conspiracy to obtain brick transportation by violating the Georgia Motor Carrier law in so far as rates, territory, or load are concerned. Jackson had a Class "B" certificate and a Georgia Public Service Commission tag which contained no notice of a limited territory. Under the circumstances the Burns Brick Company had a right to assume that Jackson had the authority he sought to exercise in transporting brick more than 150 miles from Winder. The brick company knew of no territorial restriction. Nor was it the duty of the brick company to police the activities of Jackson as to tariffs, records and bills of lading, etc. No rate law, or rule, was violated, so no case of conspiracy is shown as to rates. And, while the action is not predicated on such a contention, there was no evidence that there was an agreement to violate load limits. The parties simply agreed on how the fine would be paid if on a future date they both consented that a truck be overloaded and Jackson was caught. Even if such an agreement reactivated by a later agreement to overload would afford a cause of action for a tort committed on an overload trip, the collision here involved did not occur at a time when the truck was returning from delivering an overload of brick.
2. The award of a nonsuit on the second count was not error. The contract was on its face one between manufacturer and independent contractor engaged in an independent and separate business. The evidence does not authorize an inference that Jackson was agent or employee of Burns Brick Company. There is no evidence to show that Burns Brick Company retained the right to direct or control the time and manner of executing the work or that it interfered and assumed control. Code 105-502 (5). Various things done by Burns Brick Company may reasonably be regarded as incidental and gratuitous services such as preparing invoices, and things pertaining to advertising such as the painting of the trucks are perfectly consistent with the manufacturer and independent contractor relationship. There is not one iota of evidence that Burns Brick Company had the absolute right to require the advertising, etc. The operation under a Class "B", no fixed route certificate, in many cases is likely to be casual and informal, and the businesslike efficiency of other kinds of motor carriers and railroads is not to be expected.
3. The nonsuit was proper as to counts 3 and 5. Count 3 was based on the allegation of joint enterprise which in turn was based on the existence of a conspiracy. No conspiracy was proved, so division 1 covers the third count also. There seems to be no contention as to count 5. Even if there is, the evidence utterly fails to prove this count as laid.
Judgment affirmed on the main bill. Cross-bill dismissed. Quillian and Nichols, JJ., concur.