Opinion
43318.
SUBMITTED JANUARY 10, 1968.
DECIDED JANUARY 31, 1968. REHEARING DENIED FEBRUARY 13, 1968.
Action for damages. Douglas City Court. Before Judge Waldroup.
Memory, Barnes Memory, S. F. Memory, Jr., for appellants.
George E. Maddox, for appellee.
1. Under the Civil Practice Act (Ga. L. 1966, p. 609, as amended by Ga. L. 1967, p. 226) a motion to dismiss a complaint for failure to state a claim should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.
2. A person who gives assistance in starting a stalled automobile with the motorist's consent is not a volunteer in the sense that the duty owed him by the motorist would be reduced from the normal standard of ordinary care.
SUBMITTED JANUARY 10, 1968 — DECIDED JANUARY 31, 1968 — REHEARING DENIED FEBRUARY 13, 1968.
John DeFreitas, Jr. brought this suit for personal injuries against Jackie Harper and Mrs. Inez Harper. The complaint alleged that plaintiff offered his services as a neighborly act in helping to start defendants' car, which was out of gasoline. Plaintiff got a gallon can of gasoline, and before putting it in the car, he instructed defendants to wait for a signal from him before they attempted to start the car, so that he could remove himself from danger near the carburetor. He then put most of the gasoline in the tank and a small amount in the carburetor. Without waiting for a signal, defendants negligently attempted to start the car, engaging the starter. This caused the gasoline in the carburetor to catch fire and severely burn plaintiff.
Defendants took this appeal from the court's judgment overruling their motion to dismiss the complaint pursuant to Section 12 (b) of the Civil Practice Act (Ga. L. 1966, p. 609, 623; Code Ann. § 81A-112 (b)), for failure to state a claim on which relief could be granted.
Defendants argue that the complaint shows that plaintiff was a mere volunteer and it was thus defective for failure to allege that defendants injured plaintiff wilfully and wantonly. This contention is without merit.
The cases of Early v. Houser Houser, 28 Ga. App. 24 ( 109 S.E. 914); Callahan v. Carlson, 85 Ga. App. 4, 15 ( 67 S.E.2d 726); and Barber v. Rich's, Inc., 92 Ga. App. 880, 884 ( 90 S.E.2d 666), cited by defendants, are not apposite here. Those cases held that one who voluntarily undertakes to perform service for a master at the request of a servant who has no authority to employ other servants, is a mere volunteer and the master does not owe him any duty except not to injure him wilfully and wantonly after his peril is discovered. The services of plaintiff in this case were not secured by a servant of defendants without authority. This case is thus distinguishable from Rooks v. Jordan, 115 Ga. App. 360 ( 154 S.E.2d 746).
A petition filed before the effective date of the Civil Practice Act (Ga. L. 1966, p. 609, as amended by Ga. L. 1967, p. 226; Code Ann. Title 81A) would be construed most strongly against the pleader when considered on general demurrer and in light of its omissions as well as its averments. Mackler v. Lahman, 196 Ga. 535, 537 ( 27 S.E.2d 35); Toler v. Goodin, 200 Ga. 527, 534 ( 37 S.E.2d 609). If an inference unfavorable to the pleader could be fairly drawn from the facts alleged, that inference would prevail in determining the rights of the parties. Krueger v. MacDougald, 148 Ga. 429 (1) ( 96 S.E. 867); Chalverus v. Wilson Mfg. Co., 212 Ga. 612 (1) ( 94 S.E.2d 736). The Civil Practice Act changed these rules. As the Act is substantially identical with the Federal Rules of Civil Procedure (28 U.S.C.), it is appropriate to resort to federal cases for its construction. Holland v. Sanfax Corp., 106 Ga. App. 1, 4 ( 126 S.E.2d 442). On a motion to dismiss, a complaint should be construed in the light most favorable to plaintiff with all doubts resolved in his favor. Jung v. K. D. Mining Co., 260 F.2d 607, 608. The plaintiff is entitled to the most favorable inferences that can reasonably be drawn from the complaint, even if contrary inferences are also possible. Sidebotham v. Robison, 216 F.2d 816, 831. The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim. King Edwardc. Union v. Travelers Indem. Co., 206 F.2d 726, 728; Melo-Sonics Corp. v. Cropp, 342 F.2d 856, 858; Fowler v. Southern Bell T. T. Co., 343 F.2d 150, 153. See the host of cases annotated at 28 U.S.C.A., Rule 12, Note 69.
While the complaint does not aver that defendants either requested or consented to plaintiff's assistance, it does not show that he was persona non grata intruding himself into a matter in which he had no interest without defendants' consent. We infer that as the plaintiff's assistance was offered as a benefit to defendants it was rendered with their consent, if not at their express or implied request. We hold that a person who gives assistance in starting or extricating a stalled or ditched automobile at the motorist's request or consent is not a "volunteer" in the sense that the duty owed him by the motorist would be reduced from the normal standard of ordinary care. See Holtsinger v. Scarbrough, 69 Ga. App. 117 (3) ( 24 S.E.2d 869); Saliba v. Saliba, 178 Ark. 250 ( 11 S.W.2d 774); Kavigian v. Lonero, 312 Mass. 603 ( 45 N.E.2d 823); Anno. 3 ALR3d 780, 793. Compare, Jordan v. Batayias, 53 Ga. App. 538 ( 186 S.E. 451); Bramlett v. Hulsey, 98 Ga. App. 39 ( 104 S.E.2d 614).
It has been held that one helping a motorist in repairing a car could not recover for injuries caused by the motorist's negligence unless the latter had expressly or impliedly sought the assistance. Jacobs v. Bever, 79 N.D. 168 ( 55 N.W.2d 512). See 65 CJS 935, Negligence, § 63 (148). But even if defendants' express or implied request for help were required rather than mere consent, in order to impose on them the duty to exercise ordinary care, still the complaint would not be subject to the motion to dismiss under the liberal construction which we must give a complaint under the Civil Practice Act.
The trial court properly overruled defendants' motion to dismiss.
Judgment affirmed. Hall and Quillian, JJ., concur.