19 S.E.2d 341 | Ga. Ct. App. | 1942
Lead Opinion
The petition, construed most strongly against the plaintiff on demurrer, did not set forth a cause of action.
The plaintiff amended the petition by substituting a new paragraph for paragraph 2, the new paragraph alleging that the truck remained in the possession of the defendant's agent or employee while the motor was being checked by the plaintiff,and that plaintiff was not a servant of the defendant but was an independent contractor. The court overruled the demurrers, and the defendant excepted.
The employee of the defendant who started the motor and thereby caused the injury was not at the time acting as a servant or agent of the defendant, but was acting under the direction of the plaintiff and was his agent or servant to manipulate the truck under his direction so as to facilitate his work in making the repairs on the truck. If this agent of the plaintiff disobeyed the plaintiff's instructions, or negligently failed to follow his instruction, this agent's act was, as respects the plaintiff and the defendant, the act of the plaintiff. In Trautman v. Warfield Rohr Co.,
The petition as amended failed to set out a cause of action, and the court erred in overruling the demurrers.
Judgment reversed. Sutton, J., concurs.
Concurrence Opinion
Construing the petition against the plaintiff on demurrer, as we are required to do, it shows that the full and complete possession of the truck was not surrendered to the plaintiff. If the plaintiff was not a bailee he was a servant of the owner of the truck and not an independent contractor. The Code, § 12-102, provides that in all cases the bailee has a right to the possession of the property during the bailment. If the plaintiff was a bailee he was an independent contractor. Wooley v. Doby,