Summers v. Barron

Guerry, J. The plaintiff’s son, a sixteen- or seventeen-year-old boy, was attending the Georgia Vocational Trades School, located near Monroe, Georgia, of which the defendant Barron was president. It appears that the school was located some distance from the picture show in Monroe, and that the students were accustomed to “pile on anybody’s car that came along going down to the moving pictures and coming back.” They oftentimes rode on the running boards of cars. On the night of the injury and death of the plaintiff’s son Harry Edmonds, who worked for and was paid by the government for driving the mail truck and school bus, at the request of Mrs. Barron, took the car belonging to Mr. Barron to drive her nephew (a student at the school), to town and to carry some flowers to the hospital. Mr. Barron was in Columbus, Georgia, at the time. Edmonds, a witness for the plaintiff, testified that Barron had given him positive instructions not to allow any one to ride on the running board of his car while he was driving it. When Edmonds started to Monroe on this particular night, young [203] Summers and his companion were standing in front of the dormitory and asked permission to ride with him, and Edmonds replied that he did not have room. The boys replied: “Let us hang on,” and Edmonds said, “No, coach [the defendant Barron] told me not to let anybody ride on the running board.” The boys then requested and were allowed to ride on the running board until they got to the store a short distance away, and when the store was reached a crowd of students were waiting to catch a ride, and young Summers said, “Let me ride on to town, because if you stop these boys will get on.” Edmonds drove by the store into the paved highway and, while driving at a speed of twenty-five miles an hour, he saw a car coming and pulled his car to the right and the right wheel ran off the pavement, but the other car, which was being driven by a drunken driver, ran into or sideswiped Edmond’s car and killed young Summers, who was standing on the left running board. A witness for the plaintiff, who was young Summers’ companion and who was riding on the other running board, testified that Edmonds was not driving fast, that he pulled two wheels of the car off the road, and “did everything he could to avoid the accident. If it had been in the daytime he could have gone over further. He could have gotten the car all the way off the pavement. It was night, he got as far as he could.” The undisputed evidence for the plaintiff and the defendant shows that the school had no connection with the car or with the plaintiff’s son being on the running board, and it is clearly apparent that no liability was shown as against the school. It is also apparent that while Edmonds may have been driving Barron’s ear with his implied consent, and to that extent may have been his agent in the operation of said car, yet Barron had given Edmonds express, instructions never to permit any one to ride on the running board of the car. Edmonds’ conduct on this occasion in permitting the deceased boy to ride on the running board was contrary to the direct command of Barron, and the deceased himself had knowledge of the order. “ ‘ The driver of a motor vehicle, in the absence of express or implied authority from the owner to permit third persons to ride therein, is ordinarily held to be acting outside the scope of his employment in permitting them to do so. Hence, so far as the operator of a motor-truck is knowingly carrying a child in a position of danger, he will be regarded as acting [204] beyond the scope of his employment/ unless authority therefor from the owner is shown. Greeson v. Bailey, 167 Ga. 638, 640 (146 S. E. 490).” Braselton v. Brazell, 49 Ga. App. 269 (2) (175 S. E. 254); Haley v. Emerson Lumber Co., 12 Ga. App. 250 (77 S. E. 100). While it may be inferred under the evidence that an implied permission was given Edmonds, the driver of Barron’s car, to permit boys to ride in the car with him, gratuitously, it is v/ithout dispute that he was forbidden to permit them to ride on the running board. No contractual relation existed between the defendant and the deceased. If there was an implied permission by the defendant to allow students at the school to ride inside the automobile when it was being driven as in the present case, there was no implied authority given to the driver of the car to permit boys to hang themselves all over the outside of the car because they were not forbidden to ride inside. There was 'in this case an express limitation on the -driver’s authority so to do, which limitation was stated to the deceased. What we are holding is not contrary to the rule that a master may not, by commanding his servant to be careful, avoid liability, because such servant, in the prosecution of the master’s business, is negligent. Savannah Electric Co. v. Wheeler, 128 Ga. 550 (58 S. E. 38, 10 L. R. A. (N. S.) 1176). As was said in Greeson v. Bailey, supra, “The servant must be acting both in the prosecution and within the scope of his business.” Permitting persons to ride on the running board of the car was not in the prosecution or scope of the master’s business, but was an independent venture of the driver opposed to the express command of the master. Irrespectively of the question as to whether young Edmonds was negligent, and whether such negligence may have been a concurrent proximate cause of the injury, the evidence demanded a finding that Barron was not liable for the act of Edmonds in permitting young Summers to ride on the running board. Under this view of the case it becomes unnecessary to consider the assignments of error in respect to the charge of the court. The trial judge did not err in overruling the motion for new trial. Judgment affirmed. B.royles, C. J., concurs. MacIntyre, J., concurs specially.