Brett v. THIELE KAOLIN COMPANY

86 Ga. App. 506 (1952)

71 S.E.2d 687

BRETT v. THIELE KAOLIN COMPANY et al.

34052.

Court of Appeals of Georgia.

Decided July 3, 1952.

Rehearing Denied July 14, 1952.

*507 J. D. Godfrey, Casey Thigpen, for plaintiff in error.

D. E. McMaster, Anderson, Anderson & Walker, Irwin L. Evans, Emory L. Rowland, contra.

CARLISLE, J.

1. Where the owner of a truck hired it, together with his driver, to a corporation at an hourly rate of compensation, for use in hauling soil, notwithstanding the work was performed under the supervision of an employee of the corporation, who directed the driver of the truck what soil to haul, where to haul it, and when to haul it, and this was the only supervision or control exercised by the corporation over the driver and the truck, and the corporation had no supervision, direction, or control over the driver's mechanical operation of the truck, and had no right to discharge the driver or replace him or the truck, although the corporation may have had the right to discharge the unit consisting of the driver and the truck by terminating the contract with the owner, the driver of the truck was an employee of the owner of the truck and not of the corporation. Albert v. Hudson, 49 Ga. App. 636, 637 (176 S. E. 659), and cases cited (certiorari denied by Supreme Court, see 50 Ga. App. 902).

2. Where such a driver as is indicated in division 1 above, in the operation of the truck, pursuant to the contract between the owner and the corporation, negligently causes injury to a third person, the owner, and not the corporation, is liable in damages therefor. Albert v. Hudson, supra.

3. Where such injured third person brings a suit in Washington County jointly against the corporation, a resident of Washington County, and the owner and the driver of the truck, residents of Johnson County, the trial court, under the facts indicated in division 1, does not err in directing a verdict in favor of the owner's and the driver's plea to the jurisdiction, in dismissing the suit as to them, nor in subsequently sustaining the corporation's general demurrer to the petition.

Judgment affirmed. Gardner, P.J., and Townsend, J., concur.