Hines Et Al. v. Milam (Two Cases)., 104 Ga. App. 76, 120 S.E.2d 892 (1961)

Status: DECIDED

Docket Number: 38831

Parts: Action for damages. Fulton Superior Court. Befo...

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James L. Bullard, Clarence J. Jackson, contra.Calhoun & Calhoun, Walter W. Calhoun, for plaintiffs in error.

1. An allegation in the petition that the owner of a motor vehicle allowed a third party to operate it without more, is subject to demurrer. The consent of the owner to a third party to operate the vehicle, standing alone, is not sufficient to impose liability upon the owner.

2. A petition charging certain acts as being negligent without characterizing them as "gross" is not subject to demurrer on the grounds that it was duplicitous, multifarious, and a misjoinder in that it joined in the same count allegations of ordinary and gross negligence. Questions of gross or ordinary negligence being questions of fact and not of law, are as a rule to be determined by the jury.

3. (a) An allegation in the petition that the defendant had the reputation of being a dangerous and reckless driver of automobiles, for speeding, driving at excessive and illegal speeds, and for being an incompetent and irresponsible driver of automobiles is improper and subject to demurrer, since the issue is the negligence or nonnegligence of the driver at the time and place of the collision, and each such transaction is to be ascertained by its own circumstances and not by the reputation or character of the parties.

  (b) An allegation in the petition that the owner of the car had knowledge, or in the exercise of ordinary care should have known, that the driver whom he allowed to operate the car was a dangerous, reckless, and incompetent driver of automobiles and had such a reputation is subject to demurrer. The allegation that he knew or should have known is equivocal, and will be construed as asserting merely the conclusion of the pleader that the defendant had constructive knowledge. Under Georgia law actual knowledge of the incompetency is necessary to impose liability on the owner for negligent acts of a driver operating with consent of the owner but not as his servant or agent.

The plaintiffs in these four cases, respectively, are the two injured parties bringing actions for their own injuries, and their husbands, suing for the loss of their services, who brought actions against Clifford Hines and Ralph Allen d/b/a Allen Motor Co., for injuries and loss of services arising out of an automobile collision between the motor vehicle of one of the plaintiffs and an automobile owned by the defendant Allen and being operated by the defendant Hines.

These cases were argued together, and were treated by counsel as all involving identical questions. The following factual summation, although stated in the singular, applies as to the pertinent parts in each of the four cases.

To the original petition the defendant Ralph Allen filed five special demurrers, four of which were withdrawn and the fifth of which was sustained. The plaintiff then amended the petition, adding certain paragraphs to the original petition and adding a separate count. To the petition as amended the defendant Allen flied renewed and additional demurrers totaling seventeen in number. The defendant Hines filed five additional demurrers to the amended petition, and the defendant Allen filed eight additional demurrers to the amended petition. Following this, the trial judge sustained nine of the defendant Allen's renewed and additional demurrers, and overruled eight of them; of the defendant Hines' additional demurrers, demurrer number 5 was sustained and numbers 1 through 4 of the additional demurrers were overruled; of defendant Allen's, two were sustained and six were overruled.

Following this procedural skirmishing, the plaintiff filed as an amendment a completely new petition. This petition eliminated some of the paragraphs previously attacked by the multitudinous special demurrers. The rewritten amended petition was met by a renewal of all the previous special demurrers to count 1 and a general demurrer to count 2, together with a renewal of all of the general and special demurrers previously filed, plus eight special demurrers to count 2.

Finally, the trial judge overruled all the general and special demurrers on January 4, 1961, on which date the plaintiff filed an amendment to count 2 by adding paragraph 5A, which read as follows: "At all times herein defendant Hines was operating said motor vehicle with the consent, knowledge, acquiescence and approval of defendant Allen." The defendant Allen thereafter filed renewed and additional general and special demurrers which renewed and insisted upon each and all of the prior general and special demurrers to each count of the plaintiff's petition. These last "renewed and additional general and special demurrers of the defendant Allen" attacked paragraph 5A of count 2 of the amended petition upon the grounds "that the allegations contained herein are irrelevant, immaterial, prejudicial, not germane or pertinent to the issues involved, and that said allegations do not constitute any issuable fact, for the reason that the alleged operation of the automobile by the defendant Hines with the consent, knowledge, acquiescence, and approval of the defendant Allen does not in any way allege or seek to allege any liability as against this defendant for the operation of the automobile, for nowhere in said allegations is the said defendant Hines alleged to be the agent of the defendant Allen nor alleged to be operating said automobile in the scope of his authority nor are there any facts alleged to create such general relationship of agency as required by law, and further, for the reason that the alleged consent, knowledge, acquiescence and approval of the defendant Allen is insufficient to create the relationship of agency between the defendants for the operation of said automobile at the time and place alleged."

The defendant Hines also filed renewed and additional general and special demurrers which were identical with the above final demurrers filed by the defendant Allen.

The final action of the trial court resulted in the overruling of the renewed and additional general and special demurrers of both defendants, to which rulings exceptions were taken.

These four cases are treated by the court, as they were by counsel, as involving identical questions and as based upon similar pleadings in all relevant aspects. While applicable to each of the cases, the discussion is limited to the singular number. Although the numerical references are keyed to the record in Case No. 38831, the rulings are applicable and controlling on opposite situations in each of the cases.

1. In considering this appeal we direct our consideration first to the issue raised as to whether the trial judge erred in overruling the special demurrer to paragraph 5A of count 2 of the amended petition. Paragraph 5A alleged that: "At all times herein defendant Hines was operating said motor vehicle with the knowledge, consent, acquiescence, and approval of defendant Allen." The demurrer charges in substance that the allegation is irrelevant, immaterial, prejudicial, not germane or pertinent to the issues involved, since knowledge, consent, approval, and acquiescence given by the owner to the driver, standing alone, is not the basis for the imposition of liability upon the owner for the operation by the driver with the owner's consent.

We agree that the simple allegation, standing alone, that one of the defendants was operating the automobile of the other with the owner's consent is not sufficient as a basis for the imposition of liability. The trial court erred in overruling paragraph 4 of the renewed and additional demurrers of the two defendants to paragraph 5A of count 2 of the amended petition.

2. The next attack by demurrer upon count 2 was on the ground that it was duplicitous, multifarious, and a misjoinder in that it alleged in the same count two different degrees of care and purported acts of negligence. The argument is made that allegations of ordinary negligence cannot be joined in the same count with allegations of gross negligence. While the principle may be true, there is no classification into degrees of the negligence charged in the allegation of count 2. The defendant cites Pope v. Seaboard Air Line R. Co., 88 Ga. App. 557, 563 (77 SE2d 55), in which this court quoted with approval from an earlier case, "Their [the railroad's] employment of an improper person to come in contact with the public as their agent, would be gross misconduct." But this case is not pertinent, as there is not in this jurisdiction any classification of negligence as "gross misconduct." The degrees of negligence are described in Code 105-201-105-203 as ordinary, slight, and gross negligence. We do not interpret the Pope case as authority for the view that a master's employment of one with a violent and ungovernable temper constitutes gross negligence. The case talks merely in terms of negligence without classifying it. Furthermore, it is elementary that questions of gross negligence, being questions of fact and not of law, are as a rule to be determined by the jury. Hennon v. Hardin, 95 Ga. App. 778 (1) (99 SE2d 338), following earlier cases, this court held that, "In an action arising out of an automobile collision, the issue is the negligence or nonnegligence of the operator at the time and place of the event, and each such transaction is to be ascertained by its own circumstances and not by the reputation or character of the parties." Healan v. Powell, 91 Ga. App. 787, 790 (87 SE2d 332). See also Myrick v. Alexander, 101 Ga. App. 1 (112 SE2d 697). The trial court erred in overruling the special demurrer of the defendant Hines to paragraph 7 of count 2 of the amended petition.

  (b) The defendants' special demurrers to paragraph 8 of count 2 of the petition as amended attack the allegation that the defendant Allen, who owned the car, had knowledge, or in the exercise of ordinary care should have known, that the defendant Hines, who drove the car, was a dangerous, reckless, and incompetent driver of automobiles, and had such a reputation. This special demurrer of the defendants contends that these allegations are conclusions and do not set out facts or reasons or circumstances why or from what source the defendant Allen could or should have known of such facts.

In Graham v. Cleveland, 97 Ga. App. 47, 50 (2) (101 SE2d 870). The Holt case was not decided on the basis of the incompetency of the driver, and the quoted excerpt which Imports that liability may be imposed on the owner by means of the owner's constructive knowledge of the incompetency of the driver is inaccurate. The Georgia law imposes liability on the owner for negligent acts of an incompetent one to whom he entrusts the driving of his car, other than in agency, in only three categories: (1) By reason of his age or want of experience; (2) or his physical or mental condition; (3) or his known habit of recklessness. The requirement of actual knowledge in the first two categories is clearly implied, while in the third it is explicit. There is a decided distinction between an allegation of actual knowledge as required by the third category and one which merely charges constructive knowledge by an equivocal statement that the owner had knowledge, or in the exercise of ordinary care should have had knowledge of the driver's incompetency. In a proper situation the former is quite sufficient to state a cause of action; the latter is not.

A few jurisdictions seem to hold the owner liable in the absence of actual knowledge if he should have known the driver to be reckless or incompetent. 5 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., 2924, pp. 139-141. However, the majority of the cases which have passed upon this problem, seem to agree that the owner's knowledge and consequent liability for the driver's incompetency may not be shown merely by proof that the driver had a reputation for incompetency. 120 A.L.R., 1311, 1315, and 168 A.L.R. 1364, 1372. In Vanner v. Dalton, 172 Miss. 183 (159 S 558), it was said that "The reputation of incompetency if relevant to the fact of incompetency is of itself alone 'inconclusive and needs to be reinforced [citing 1 Wigmore, Evidence, 2d ed. 208].' "

The most recent expression of the Supreme Court relating to the subject is found in Young v. Kickliter, 213 Ga. 42, 43 (96 SE2d 605), where the court stated, inter alia, that the owner is not to be held liable for injuries inflicted by his automobile being operated by another, "unless the person driving it was the agent or servant of the owner, and engaged upon the business of the owner at the time the injury occurred . . . or unless the owner of the automobile entrusts it to one whom he knows to be an incompetent or reckless driver . . ." (Italics ours).

For the reasons indicated, the trial court erred in overruling the defendant's renewed and additional demurrers to paragraph 8 of count 2 of the plaintiff's amended petition.

  (c) The defendants' special demurrers attack paragraphs 10 (i), (j), and (k) of count 2 of the plaintiff's amended petition. These allegations charge the defendant Allen with being negligent in allowing a dangerous and reckless driver to operate his automobiles; with failing "to specifically prohibit the use of his automobiles to a known dangerous and reckless driver"; and was negligent in employing a dangerous and reckless driver and giving the reckless and dangerous driver access to and the use of his automobiles. For the reasons stated in division (b), the trial court improperly overruled these special demurrers, since there was no allegation in the petition of facts known to the defendant Allen from which the jury could conclude actual knowledge on his part of the incompetency, or no proper averment of actual knowledge by Allen of the defendant Hines' incompetency.

4. (a) The trial court did not err in overruling the general demurrers of the defendant Hines to counts 1 and 2 of the amended petition. Both of these counts contain allegations sufficient, if proved, to impose liability upon him.

  (b) The trial court erred in overruling the general demurrer of defendant Allen to count 2, since the sustaining of his special demurrers discussed elsewhere in this opinion eliminates any theory by which he as owner of the car could be held liable for the driving of the defendant Hines. It is elementary that the mere fact of ownership of the vehicle, standing alone, is not sufficient in this jurisdiction to impose liability upon the owner for the injuries caused by the driving of a third party. See Frankel v. Cone, 214 Ga. 733 (107 SE2d 819).

  (c) The trial court properly overruled the general demurrer of the defendant Allen to count 1. Count 1 alleged in substance acts of negligence of the driver, and further charged that the driver was the agent, servant, or employee of Allen, and at the time was acting within the scope of and in pursuance of the duties of his employment. This is an appropriate way of alleging agency so as to impose liability upon the employer for the acts of the employee under Code 105-108. Conney v, Atlantic Greyhound Corp., 81 Ga. App. 324 (3) (58 SE2d 559). The other assignments of error were abandoned.

The judgment is affirmed in part and reversed in part in each of the four cases. Felton, C. J., and Hall, J., concur.