Summary
In Young v. Koger, 94 Ga. App. 524 (95 S.E.2d 385) the nonresident defendant filed a general demurrer alleging that the petition failed to set forth a cause of action against him, and this court held that where the demurring defendant was a nonresident, and the resident defendant filed no demurrer, the question was raised, and it would not be error for the trial court to dismiss the petition as to both defendants where as a matter of fact no cause of action was set out against the defendant who failed to demur.
Summary of this case from Harrell v. GardnerOpinion
36286.
DECIDED NOVEMBER 2, 1956.
Tort; automobile collision, jurisdiction, etc. Before Judge Perryman. McDuffie Superior Court. April 25, 1956.
Randall Evans, Jr., for plaintiff in error.
E. D. Fulcher, Fulcher, Fulcher Hagler, contra.
The trial court did not err in sustaining the general demurrer filed by the defendant Koger, and in dismissing the action as to both defendants.
DECIDED NOVEMBER 2, 1956.
Miss Willa Young brought an action against Guy Koger, Jabe Alfred Truitt, and Miss Irene Young in which she sought to recover for injuries sustained by her in an automobile collision on or about July 27, 1954, on U.S. Highway 78 between Thomson, Georgia, and Washington, Georgia, while riding in an automobile being driven by Miss Egrus Young and owned by the defendant, Miss Irene Young. Previously the plaintiff brought an action against the driver of the automobile in which she was riding and other defendants shown above except Miss Irene Young, the owner of the automobile. In the previous action the defendant driver's general demurrer was sustained and the general demurrers of the other defendants were sustained inasmuch as the driver defendant was the only resident of the county wherein the action was filed and when the resident defendant's general demurrer was sustained the court's jurisdiction over the other defendants was lost. For the opinion of this court in that case see Young v. Truitt, 93 Ga. App. 143 ( 91 S.E.2d 115).
In the present case, after the petition was filed the plaintiff, by amendment, struck Jabe Alfred Truitt as a party defendant and charged the defendant Koger with the negligence charged against Truitt for knowingly furnishing Truitt (who Koger knew or should have known was incompetent to drive a truck on the public highways of this State), the truck being driven by him and which was involved in the collision with the automobile in which the plaintiff was riding.
The allegations of the petition with reference to the collision and its cause were substantially as follows: That the plaintiff was riding in an automobile being driven by Miss Egrus Young at the request of and for the benefit of Miss Egrus Young; that the plaintiff had no rights of ownership in the automobile nor did she have any right to direct or assist in the operation of the automobile at the time of the collision complained of; that Miss Egrus Young was making the trip at the direction of Miss Irene Young for the benefit of Miss Irene Young and Miss Egrus Young; that the automobile being driven by Miss Egrus Young was being driven north on its own right-hand side of the highway at a speed of approximately 35 miles per hour; that Miss Egrus Young, the driver of the automobile in which the plaintiff was riding, saw through the rear-vision mirror a reflection of the truck being driven by Truitt approaching from the rear and rapidly overtaking the automobile being driven by her while it was traveling in the same direction and while such truck was traveling at the rapid and illegal rate of speed of approximately 65 miles per hour; that, as the truck continued to gain on the automobile being driven by Miss Egrus Young without slowing down its speed, she realized that unless she increased her speed the truck would collide with the car being driven by her; that when the truck was approximately 10 yards from the automobile the truck and the automobile continued to travel approximately 100 yards while maintaining the distance of approximately 10 yards between them; that the driver of the automobile attempted to increase the speed of the automobile by depressing the accelerator of the automobile; that the accelerator would not respond to pressure, and the driver exerted more pressure upon the accelerator, and, in so doing, her foot slipped off the accelerator and onto the brake pedal slowing the speed of the automobile from 35 miles per hour to 10 miles per hour; that the driver of the truck, when within 10 yards of the automobile, realized that the truck was going to collide with the automobile, and he turned the truck sharply to the left in an effort to avoid striking the rear of the automobile, but, because of the high speed at which he was driving and the sudden slowing down of the automobile, he was unable to avoid striking the automobile and did strike the automobile in which the plaintiff was riding causing her alleged injuries; that the defendant, Miss Irene Young, the owner of the automobile, knew of the defective condition of the accelerator on the automobile owned by her and involved in the collision; that she knew that it would hang and knew that the driver, Miss Egrus Young, did not know of this defect; that she knew that the plaintiff did not know of this defect; that she knew that the driver, Miss Egrus Young, would drive the automobile on the day of the collision and that the plaintiff would be riding in the automobile at such time.
The plaintiff charges the defendant, Miss Irene Young, with negligence in furnishing the automobile to Miss Egrus Young with the alleged latent defect, in not warning her or the plaintiff of such defect, and in furnishing such automobile in its defective condition knowing that the driver or other occupant could not discover such defect in the exercise of ordinary care. The petition also charges the defendant Koger with negligence in furnishing the truck involved in the collision to Truitt and employing and retaining Truitt in the employment of Koger's principal to drive a truck knowing, or having an opportunity to know, that Truitt did not have the ability and competency to operate the truck on the highways of this State.
The action was brought in the Superior Court of McDuffie County, Georgia, McDuffie County being alleged as the residence of the defendant, Miss Irene Young. The petition alleged that the defendant Koger was a resident of Wilkes County, Georgia. Koger filed general and special demurrers, ground one of which alleged that the petition failed to set forth a cause of action against him. The trial judge, after hearing argument on the demurrers, entered a judgment dismissing the petition as to both defendants, in which he stated that the petition failed to set forth a cause of action against the resident defendant and therefore the court was without jurisdiction of the nonresident defendant. The plaintiff in her bill of exceptions excepts to the judgment of the trial court sustaining Koger's general demurrer and dismissing the action as to both defendants.
1. One of the defendants in error in the present case filed a motion to dismiss the bill of exceptions and bases such motion on the decision of the Supreme Court in Clay v. Floyd, 208 Ga. 374 ( 66 S.E.2d 916). In that case 82 days intervened between the date the bill of exceptions was tendered to the trial judge and the date it was certified without any explanation in the record of the delay and without any effort being shown in the record of the plaintiff in error's attempting to mandamus the trial judge to act on such bill of exceptions.
In the present case the record shows that the bill of exceptions excepted to a judgment dated April 25, 1956; that the bill of exceptions was tendered to the trial judge on April 28, 1956, without any previous notice having been given to the defendants in error of its proposed presentation; that on April 30, 1956, the trial judge issued what amounted to a rule nisi in which it was stated that a hearing would be held on May 12, 1956, to determine the correctness of the bill of exceptions; and that on the day set for the hearing, May 12, 1956, the trial judge certified the bill of exceptions.
In the decision of the Supreme Court in Clay v. Floyd, 208 Ga. 374, 377, supra, relied on by the movant, it was said: "We do not think that § 6-1312 of the Code . . . prohibits a dismissal of the writ of error when the bill of exceptions is presented in time, but held by the trial judge unsigned for an unreasonably long period of time with the express or tacit acquiescence of the plaintiff in error; and tacit acquiescence in the judge's failure to sign a bill of exceptions results from a failure of the plaintiff in error or his counsel to use the facilities of the law when the judge retains the bill of exceptions, for no sufficient cause, after the time prescribed by law for its certification has expired." Inasmuch as the record shows in the present case that an order was issued by the trial judge 2 days after the bill of exceptions was tendered to him setting a date for a hearing to determine the correctness of the bill of exceptions, and that on the day of the hearing the trial judge certified the bill of exceptions, it cannot be said that the trial judge retained the bill of exceptions for no sufficient reason after the time provided by law, and a dismissal of the bill of exceptions in the present case would be in violation of Code § 6-1312. Therefore the motion to dismiss the writ of error must be overruled.
2. The defendant Koger impliedly concedes in his brief that the action of the trial court in sustaining his general demurrer was proper only if the petition failed to set forth a cause of action against the defendant Miss Irene Young who was the only defendant who was alleged to be resident of McDuffie County, Georgia, where the action was filed. If the trial court was correct in sustaining the demurrer filed by Koger because the petition failed to set forth a cause of action against the resident defendant, then the judgment dismissing the action as to both defendants was correct inasmuch as the demurrer went to the "very vitals of the plaintiff's case" and necessarily inured to the benefit of the resident defendant (who filed no demurrer) as well as to the nonresident defendant who filed the general demurrer. See Peoples Loan Co. v. Allen, 198 Ga. 516, 519 ( 32 S.E.2d 175); and Goodwin v. Candace, Inc., 92 Ga. App. 438 ( 88 S.E.2d 723).
3. "This court has held that one who turns over to another for his own use an automobile which he knows to be defective, and which the driver does not know to be defective, is liable to the latter for injuries proximately caused by the defective instrumentality. Nash v. Reed, 81 Ga. App. 473 ( 59 S.E.2d 259); McDaniel v. Jones, 58 Ga. App. 495 ( 199 S.E. 233); Evans v. Carroll, 85 Ga. App. 227 ( 68 S.E.2d 608). See also, to the same effect, Foster v. Farra, 117 Ore. 286 ( 243 P. 778); Jones v. Raney Chevrolet Co., 213 N.C. 775 ( 197 S.E. 757); 2 Blashfield's Automobile Law 1335, § 16." Burks v. Green, 85 Ga. App. 327, 329 ( 69 S.E.2d 686). In Holt v. Eastern Motor Co., 65 Ga. App. 502 ( 15 S.E.2d 895), it was held that where a person furnishes an automobile to another for the mutual benefit of both and such automobile has a latent defect which proximately causes an injury to a third party (a guest is such automobile), the defendant who furnished such defective automobile is liable for the injuries. Therefore, since the petition in the present case alleged a latent defect unknown to the driver or the plaintiff, but known to the defendant Miss Irene Young, if the allegations of the petition show that this defect was a contributing cause to the collision and the plaintiff's injuries, the trial court erred in sustaining the defendant Koger's general demurrer.
An examination of the petition reveals that it was alleged that the driver of the car owned by the defendant Miss Irene Young saw the truck overtaking her from the rear and that she realized that unless she increased her speed the truck would collide with the car being driven by her. The petition then alleges that, while the truck was traveling approximately 65 miles per hour, and while the automobile was traveling approximately 35 miles per hour, they maintained a distance between them of approximately 10 yards while they traveled 100 yards. This allegation is physically impossible because the truck would have overtaken the automobile before the automobile traveled 13 yards from the beginning of the 100-yard stretch and the collision would have taken place before the driver of the automobile was alleged to have applied the brakes while attempting to speed up the automobile being driven by her.
Therefore, the petition in this case, in accordance with the plain and obvious allegations of the pleader, and without adding any inferences to make a stronger construction against her, shows that the collision was not due to any alleged defect in the automobile furnished by the defendant Miss Irene Young but was due solely to the negligence of the defendant Koger, or to the negligence of the truck driver, Truitt, or to the negligence of Koger and Truitt jointly.
Accordingly, the judgment of the trial court sustaining the general demurrer of the defendant Koger, a nonresident, and in dismissing the action as to both defendants was not error for any reason assigned.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.