Opinion
34367.
DECIDED JANUARY 24, 1953. REHEARING DENIED FEBRUARY 12, 1953.
Action for damages; from Floyd Superior Court — Judge Nichols. October 8, 1952.
Maddox Maddox, for plaintiff in error.
Tom Willingham, John M. Slaton, Wright, Rogers, Magruder Hoyt, Parker, Clary Kent, contra.
1. Where, as here, a deputy sheriff and a sheriff jointly own an automobile for use in the performance of the official duties of the office of county sheriff, and such sheriff, while operating said automobile in which the plaintiff deputy sheriff is riding in the course of his duties as such official, commits acts of negligence which concur with other acts of negligence of a third party to cause injuries to the plaintiff — the negligence of the sheriff in operating the automobile is not imputable to the plaintiff on the ground that both are engaged in a joint enterprise.
2. Where, as here, the operator of the car in which the plaintiff was riding, while driving at excessive speed, attempts to pass another automobile going in the same direction, and the vehicle which he is about to pass makes a left turn without the driver signaling his intention to do so, it is a jury question whether such negligence in failing to give a proper signal was a concurring proximate cause of the plaintiff's injuries.
DECIDED JANUARY 24, 1953 — REHEARING DENIED FEBRUARY 12, 1953.
C. A. Archer, the plaintiff in error, filed a suit for damages in the Superior Court of Floyd County against Aristocrat Ice Cream Company and D. G. Johnson, which petition alleged substantially the following facts: That the plaintiff, a deputy sheriff, the defendant Johnson, sheriff, and another deputy sheriff jointly own an automobile and operate it in connection with their duties as sheriff and deputy sheriff; that the plaintiff as deputy was at all times under the direction and control and subject to the orders of the defendant sheriff; that a part of their duties is to investigate crimes; that at about 6 p. m. on January 20, 1952, the plaintiff and defendant were proceeding in said automobile down Maple Street, a highway of Floyd County, in response to a call regarding a shooting, Johnson driving and the plaintiff seated at his side, and were engaged in passing a truck owned and operated by the defendant Aristocrat Ice Cream Company when the latter made a left turn across the highway to enter the company yard and the two vehicles collided, resulting in certain serious injuries to the plaintiff. The acts of negligence alleged against the defendant company are that the truck driver did not signal his intention of making a left turn, or, if such signal was given, the construction of the body of the truck was such that it could not be seen by persons operating from the rear; that it was not equipped with any device for signaling a left turn which could be seen by one approaching from the rear; and that the employee driving the same should have ascertained before turning that the car in which the plaintiff was riding was rapidly approaching from the rear, as the automobile was equipped with a siren and blinker light, both in operation. As to the defendant Johnson, it is alleged that Maple Street is extremely heavily traveled, especially at the hour of the collision; that it is built up with dwellings and places of business, resulting in an almost continuous stream of traffic and automobiles constantly turning into said places of business; that the defendant Johnson was nevertheless driving the said automobile at the reckless and illegal rate of approximately 80 miles per hour; that, when the ice cream truck blocked the east lane of said highway Johnson applied his brakes and skidded 182 1/2 feet before striking the truck with such tremendous force as practically to demolish the automobile; and that in so doing he operated the automobile without due regard for the lives and safety of others.
A general demurrer interposed by the defendant ice cream company was sustained, and the exception is to this judgment.
1. One ground of general demurrer is to the effect that the petition sets out no cause of action, since it affirmatively shows that the driver of the car in which the plaintiff was riding could have avoided the collision by the exercise of ordinary care. Conceding this to be so, it nevertheless does not bar the plaintiff from recovery unless such negligence is imputable to him. Mayor c. of Savannah v. Waters, 27 Ga. App. 813 (1) ( 109 S.E. 918). It is here contended that the defendant sheriff and the plaintiff, his deputy, were engaged in a joint enterprise, by reason of which fact any negligence on the part of the sheriff is imputable to the plaintiff as a matter of law. As to what constitutes a joint enterprise, it was held in Fuller v. Mills, 36 Ga. App. 357 (1) ( 136 S.E. 807): "A joint enterprise by two persons riding in an automobile along a public highway, the engagement in which will impute the negligence in operating the automobile of one of the persons, who is the driver, to the other person, must be a joint enterprise in controlling, directing, and governing the operation and running of the automobile, and not merely a joint interest in the objects and purposes of the trip."
The petition alleged sufficient facts to show that the car was jointly owned by the plaintiff, the defendant and another in connection with the operation of the sheriff's office at the time of the collision, and that the sheriff, the head of that office, was at the wheel, and the plaintiff, who was under his direction, supervision and control, was seated therein as a passenger. Sheriffs have the power of appointing and discharging deputies at their pleasure. Code, § 24-2811; Beauty v. Burch, 43 Ga. App. 832 ( 160 S.E. 654). Where the sheriff and deputy are both present and engaged in the performance of the duties of the sheriff's office, the former is in charge of the entire operation, and the deputy is his agent in effecting the proper discharge of such duties. Were the facts the other way around, i.e., the deputy driving at the command of the sheriff and in accordance with his instructions, the doctrine of respondent superior would apply, for the same elements of control and supervision are present in the relation of a sheriff and his deputy as in those of a road supervisor and his subordinate, the doctrine having been applied in the latter instance. See Mathis v. Nelson, 79 Ga. App. 639 ( 54 S.E.2d 710). This being so, it would not matter whether the mere legal title to the vehicle in question was in the county, or in the sheriff, or shared by the sheriff and his deputies jointly.
There is no right inherent in the office of sheriff permitting such officer to travel at the excessive speed of 80 miles per hour, in violation of law, on a crowded highway where motorists, at a rush hour, are constantly turning into and out of driveways. It is not alleged that the trip in question constituted an emergency call under Code (Ann. Supp.) § 68-301 (d) so as to relieve the officer from observing traffic regulations. Nevertheless, the violation was that of the sheriff, and the plaintiff deputy, being under his control in the exercise of the official business for which the car was purchased, cannot be said to share equally in controlling, directing and governing the operation of an automobile engaged in such business so as to convert the relationship into a joint enterprise and thereby impute the defendant's negligence to the plaintiff.
2. Other grounds of demurrer contend that the petition affirmatively shows that any negligence on the part of the driver of the defendant company's truck did not contribute to the collision, the sole proximate cause thereof being the negligence of the defendant Johnson. One of these grounds is a speaking demurrer, in that it attempts to show mathematically that the 182 1/2 foot skid of the defendant, plus reaction time for putting on brakes and distance traveled during such reaction time at the speed alleged, proves that if he had been observing the speed limit, Johnson could have stopped the car without colliding with the truck after he observed the truck commencing the left turn. This is not a subject for judicial notice, but a matter for proof upon the trial of the case.
Code § 68-303 (f) provides as follows: "An operator intending to start, to stop, or to turn his vehicle to the left or right shall extend the hand and arm horizontally from and beyond the left side of the vehicle." Although the petition alleges in the alternative "that the truck of said defendant ice cream company was driven on its left and across said highway without the giving of any signal of intention to do so, or if said signal was given, on account of the construction of said truck and the body thereof, it could not be seen by persons operating from the rear," which allegation must be given the construction most unfavorable to the pleader, either of the alternatives alleged would nevertheless constitute a violation of this Code section, since the arm must be extended "beyond the left side of the vehicle." The petition thus alleges negligence per se in the operation of the company truck. Whether such negligence, in failing to signal a left turn, is a proximate concurring cause of injury to a guest riding in an automobile which is attempting to pass such vehicle at an excessive rate of speed is a jury question. Speed Oil Co. of Calhoun v. Jones, 59 Ga. App. 625 ( 1 S.E.2d 760). See also Parks v. Stein Steel Supply Co., 85 Ga. App. 306 (2) ( 68 S.E.2d 919); Brady v. Fruehauf Trailer Co., 63 Ga. App. 50 ( 10 S.E.2d 133); Edison v. Felder, 68 Ga. App. 188 (2) ( 22 S.E.2d 523). It is incumbent upon one who violates traffic laws and regulations to anticipate that others, like himself, might also disobey the same laws. Williams v. Grier, 196 Ga. 327, 338 ( 26 S.E.2d 698). Whether or not this defendant failed to give a proper signal, as well as whether or not the failure to do so was a contributing proximate cause of the collision, are jury questions. Georgia Power Co. v. Blum, 80 Ga. App. 618 (2) ( 57 S.E.2d 18).
Since the negligence of the sheriff defendant cannot be imputed to the plaintiff, his deputy, and since the petition alleges sufficient acts of negligence against the defendant in error to state a cause of action against it, the trial court erred in sustaining the demurrer and dismissing the petition.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.