26 Ga. App. 544 | Ga. Ct. App. | 1921
Greenberg &' Bond Company was employed by two brothers to conduct the funeral of their mother, to furnish the coffin and robes and automobiles, and in general to see that the funeral was properly conducted. Greenberg & Bond Company did not .itself own automobiles, but was in the habit of hiring them, in connection with its business, from the Smith Taxicab Company and others. There is some conflict in' the evidence on the question as to whether the automobiles used in the funeral were engaged by Greenberg & Bond Company at the request and as the. agent of the two brothers when they made the contract with the former for the funeral services; Greenberg & Bond
It is well established that "the fact that an employee is the general servant of one employer does not, as matter of law, prevent him from becoming the particular servant of another, who may become liable for his acts. And it is true as a general
There are many other decisions in point. Indeed the trouble has not been as to the principle of law, which seems „to be uniform, but the application of the principle to particular facts has given rise to a great number of conflicting' decisions *on the question under consideration. Judge Lurton quotes with approval the language of Chief- Justice Cockburn in Rourke v. White Moss Colliery Co., 2 C. P. Div. 205, as follows: "When one person lends his servant to another for 1 a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him” See Powell v. Va. Construction Co., 88 Tenn. 692 (13 S. W. 691, 17 Am. St. R. 921). The relation of master and servant exists only when the person whom it is sought to charge as master for the act of the servant either employed or controlled him, or had the right of control over him, at the time the injury sued for happened. To make the master responsible he must not only have the power to select the servant, but to direct the mode of executing the work and so to control him in his acts in the course of his employment as to prevent injury to others. He who has the choice, direction, and control of the servant is deemed to be the master, and whether or not the relation of master and servant exists, so as to render the rule of respondeat superior applicable, depends mainly on whether the employer retains the direction and control of the work or has given it to another person. Brown v. Smith & Kelly, supra.
Applying these principles to the facts in this case, was the
Now the question in the present case is: Did the Smith Taxicab Company surrender to Greenberg & Bond Company the direction and control of the chauffeur and the automobile while engaged in and during the conduct of the funeral? The ques
Judgment affirmed.