Sumter Milling & Peanut Co. v. Singletary

Sxjtton, C. J. (After stating the foregoing facts.) “Every person shall be liable for torts committed by his wife, his child, or his servant, by his command or in the prosecution and within the scope of his business,' whether the same shall be by negligence or voluntary.” Code, § 105-108. The allegations of the petition show that M. C. Wall was the managing officer of the defendant corporation, and as such was vested with authority to control and command the servants and employees of said corporation, and acting in his capacity as such officer he in *115 structed and commanded the servant of such corporation to take its truck and transport the group of Boy Scouts, including the plaintiff’s son, to and from Chehaw State Park, as alleged. Properly construed, we think that the allegations of the petition show that Wall the managing officer, was the alter ego of the corporation, and that his command and acts in using the truck of the corporation in transporting .the group of Boy Scouts to and from said State park were those of the corporation. As managing officer of the corporation, he had permission and authority to use the corporation’s trucks as he saw fit, and the truck was being operated at his direction and with the knowledge of the defendant at the time the plaintiff’s son was killed as alleged in the petition. Under the allegations, we think that the authority of Wall, the managing officer', over the truck in transporting the plaintiff’s son, at the time and place in question, was the same as that of the corporation itself. In other words, we think the allegations of the petition were sufficient to show that his authority with respect to the use and operation of said truck was not limited, but that he had as full and complete authority over the truck in that respect as the corporation itself had. See Bussell v. Dannenberg Co., 34 Ga. App. 792 (132 S. E. 230); Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700, 706 (50 S. E. 945). The plaintiff’s son was an invitee of the defendant corporation while riding on its truck to and from said State park, and it must appear from the allegations of the petition that his death was the result of gross negligence on the part of the defendant or its servant in the operation of the truck at the time and place in question in order for the plaintiff to recover. This court cannot say as a matter of law that the alleged facts do not amount to gross negligence. But, on the contrary, we think that the allegations of negligence set out in paragraph 15 (a, b, f, g, h, i, and j), when considered with all the alleged relevant facts and circumstances, were sufficient to raise a jury question as to gross negligence on-the part of the defendant, and said allegations were not subject to the defendant’s special demurrer. In this connection, see Pitcher v. Curtis, 43 Ga. App. 622 (159 S. E. 783); Smith v. Hodges, 44 Ga. App. 318 (161 S. E. 284); Jordan v. Lee, *116 51 Ga. App. 99 (3) (179 S. E. 739); Capers v. Martin, 54 Ga. App. 555 (188 S. E. 465). Subdivisions c, d, and e of said paragraph should be stricken. Therefore, the court did not err in overruling the defendant’s general and special demurrer. Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232, Code, Ann. Supp. § 24-3501), requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole. Judgment affirmed. Sutton, C. J., MacIntyre, P. J., Gardner and Parker, JJ. concur. Felton and Townsend, JJ., dissent.