Harper v. Brown

176 S.E.2d 621, 122 Ga. App. 316, 1970 Ga. App. LEXIS 862

• Court: Court of Appeals of Georgia
• Decided: June 24, 1970
• Docket: 45270
• Status: Published

Opinions

Deen, Judge.

The defendant Harper was president of Southern Propane Company, a wholly owned subsidiary corporation of the defendant Allied Chemical Corp., and as such was furnished with the use of the automobile which he was driving at the time of the collision. The evidence is uncontradicted that on the Sunday in question he was engaged in driving a friend out to his farm for personal reasons, and in doing ac errand for the friend, neither of which objectives had any relation to the business of either of the corporations. The general rule is as stated in Price v. Star Service &c. Corp., 119 Ga. App. 171 (1 c, e) (166 SE2d 593): When a servant is permitted by the master to use a vehicle for the servant’s own pleasure or business, wholly disconnected from that of the master, and a third party is injured by the servant’s negligent operation of it while on his own mission, the master cannot be held liable under the doctrine of respondeat superior. . . Operation of the master’s vehicle by a servant with the master’s knowledge, consent and permission, but on a mission purely personal to the servant, places the servant in the same position as that of any borrower of a vehicle, and as to the use of the vehicle on the personal mission the relationship is that of bailor and bailee only.” A company is not chargeable with acts committed by its president in his individual capacity and for his personal benefit only. Hopkins v. City of Atlanta, 172 Ga. 254 (2) (157 SE 473). And see Strickland v. Bank of Cartersville, 141 Ga. 565 (4) (81 SE 886). It was held in Heath v. Atlanta Beer Distributing Co., 56 Ga. App. 494 (193 SE 73) that even though a tortfeasor is the owner and sole stockholder of the corporation, the corporation is not liable unless the tortfeasor is acting within the scope of his employment or in the line of business of the corporation at the time. Even though the company car was turned ovher to Harper as president without restrictions on his use, the rule of respondeat superior does not apply where the use was purely personal to Harper. See also Code § 105-108; McGuire v. Gem City Motors, 296 FSupp. 541; Fulton Bag &c. Mills v. Eudaly, 95 Ga. App. 644 (98 SE2d 235); Fielder v. Davison, 139 Ga. 509 (77 SE 618). Since the evidence demands a conclusion that Harper was on a purely personal mission at the time of the collision, the judgment against Allied Chemical Corp. is without evidence to support it.

The court charged: "The laws of Georgia prohibit the operation of an automobile at a speed in excess of 35 miles per hour on a public highway in a residence district. . . If you find that Mr. Harper was driving his motor vehicle in excess of 35 miles per hour on a public highway of this state in a residence district, such conduct would amount to negligence as a matter of law.”

The evidence shows that there were houses along the road in this area and that it was not within a municipality. The only evidence as to speed limit came from a deputy sheriff who understood it to be 60 miles per hour. There was no evidence that any maximum speed sign appeared along the highway. Code Ann. § 68-1626 deals with speed limits, subsection (2) setting the 60 mph. daytime limit where no special hazard exists. Subsection (1) sets a limit of 35 mph. in any business or residence district. Speed zones are established by the State Highway Board as set out in Code Ann. § 68-1627, are posted by it in accordance with Code Ann. § 68-1610. As to the evidence necessary to prove that the speed limit has been reduced from 60 to 35 miles per hour, this court has held that testimony that it is so posted is prima facie probative of the fact of change under Code Ann. § 68-1610 (c), but whether the speed limit has been so reduced depends upon whether action has been taken by a governing authority, and proper notice posted on the highway. See Hodges v. State, 100 Ga. App. 611 (1) (112 SE2d 373) where it was held: "To allow officers to arbitrarily decide this question would be an unlawful assumption of legislative powers.” Obviously, then, the issue should not be left after the event for a jury to decide, where official action has not been taken, whether it considers an unmarked area to have a speed limit of 35 rather than 60 miles per hour. See also Atlanta Metallic Casket Co. v. Hollingsworth, 104 Ga. App. 154, 161 (121 SE2d 388); Justice v. Bass, 114 Ga. App. 353, 358 (151 SE2d 511).

"A residential area is defined by statute. It is 'the territory contiguous to and including a highway not comprising a business district when the property on such highway for a distance of 300 feet or more is in the main improved with residences or residences and buildings in use for business: Provided, however, that when such territory is located outside the incorporated limits of a city or town, it is designated and marked as such by the Director of Public Safety.’ Code Ann. § 68-1504 (5) (b).” Heaton v. Smith, 121 Ga. App. 348 (174 SE2d 197). Where nothing in the record suggests that a reduced speed limit had in fact been effectuated at the place of the collision, it was error to so instruct the jury as to leave it free to find the defendant guilty of negligence per se if it was determined that he was traveling between 35 and 60 miles per hour in a "residential district.”

The remaining enumerations of error are not passed upon. For the reasons set out in the first division of this opinion, the trial court erred in denying a judgment notwithstanding the verdict to the corporate defendant. This being true, the court has no jurisdiction over the nonresident defendant Harper, and the judgment against him must be set aside.

Judgment reversed.

Bell, C. J., Jordan P. J., Hall, P. J., Eberhardt, Pannell, Quillian and Whitman, JJ., concur. Evans, J., dissents.