DECIDED JULY 2, 1953. REHEARING DENIED JULY 14, 1953.
Action for damages. Before Judge Rowland. Laurens Superior Court. October 23, 1952.
Nelson Nelson, Lester F. Watson, for plaintiff in error.
Johnson Johnson, Harold E. Ward, contra.
1. Special demurrers which attack particular allegations of the petition as being multifarious, contradictory, impertinent, irrelevant, and immaterial, mere conclusions, and as constituting a misjoinder of parties plaintiff and defendant and of causes of action, but which do not specifically point out wherein or how such defects in the petition exist, are too vague and incomplete to be considered by this court.
2. An allegation that the defendant was driving the automobile involved in a collision with one driven and being ridden in by the plaintiffs' parents, at a speed of 90 miles per hour, is a sufficient allegation of fact to support a charge of negligence in driving the automobile at an unlawful and rapid rate of speed of more than 55 miles per hour, and faster than was reasonable and safe, having due regard for the width, grade, character, and use then being made of the road.
3. Allegations of negligence against one of the joint defendants, though not imputable to the other under the special facts of this case, are nevertheless proper averments in the petition, and the judge of the superior court properly refused to strike them on the demurrer of the defendant to whom they did not apply.
4. If a petition sets forth a cause of action on any theory, it is not subject to dismissal on general demurrer. While a sheriff is not an employer of his deputy, and is not, as such, personally liable under the doctrine of respondent superior, for the merely negligent torts of the deputy not committed by virtue of or under color of his office, and while the petitions did not state causes of action against the sheriff on this theory — nevertheless, the petitions did set forth causes of action against the defendant Gay based on his furnishing to the defendant Powell, who was known to Gay as a reckless, dangerous, and habitual driver of automobiles at excessive speeds, an automobile which had been "souped up" and made too powerful and difficult to manage when driven at an excessive speed, and the overruling of the general demurrers was not error.
5. Factitious demands by special demurrer are not favored, and the allegations of fact in the petition being sufficiently clear and definite to inform the defendant of the cause of action against him, the judge of the superior court did not err in overruling the grounds of special demurrer calling for additional allegations of fact.
DECIDED JULY 2, 1953 — REHEARING DENIED JULY 14, 1953.
Glenn P. Healan, W. Doyle Healan, individually and as next friends of Carl Healan and Joyce Healan, minor children of James F. Healan and Ethel S. Healan, deceased, and Mrs. Dan E. Dunlap, Mrs. Lois Crafton, Mrs. Julian C. Shepard, Mrs. H. Ross Swafford, Mrs. Jean Thompson, and Mrs. L. A. Million, sued Carlus Gay and Charlie Powell for damages for the death of their parents, James F. Healan and Ethel S. Healan, alleged to have resulted from the negligence of Powell in operating an automobile owned by Gay and furnished by him to Powell at the time of the injury to the Healans. The material allegations of the two petitions are substantially the same, one being an action for the death of the plaintiffs' father, and the other being an action for the death of their mother. In case No. 34458, the petition alleged (omitting formal and immaterial parts): "4. That on May 20, 1952, and at the time of the collision hereinafter set forth and described, the defendant Carlus Gay was sheriff of Laurens County, Georgia, and the defendant Charlie Powell was deputy sheriff of said county, employed by and acting and serving under said sheriff, within the scope of his employment by said sheriff, and in the performance of his duties as such employee and deputy sheriff, and was under the control and direction of his employer, the defendant, Carlus Gay, sheriff as aforesaid, who was then and there responsible for the acts of the said Charlie Powell hereinafter set forth. 5. That about eleven o'clock on the morning of May 20, 1952, the said Ethel S. Healan, the mother of your petitioners, was a guest passenger in a 1948 Plymouth coach model automobile, which was then and there being driven by her husband, James F. Healan on U.S. Highway No. 441 in said county, in a southerly direction toward Dublin, Georgia, and about seven miles north of that city, and on his side, that is the right hand side of said highway in the direction in which said automobile was traveling, and at a rate of speed of from 35 to 40 miles per hour. 6. That the said Ethel S. Healan did not have any control or direction over the operation of said automobile in which she was then and there riding, and was then and there in the exercise of ordinary care and diligence, and was free from fault and negligence and could not have avoided the injury received by her by the exercise of ordinary care and diligence. 7. That on said highway and at said time and place, the defendant Charlie Powell was driving an automobile furnished him by the defendant, Carlus Gay, for use in the performance of his duties, within the scope of his employment, as deputy sheriff, to wit, a 1950 Ford coach model automobile, with a Cadillac automobile motor in the same. 8. That while approaching a hill on said highway and driving said Ford automobile in a northerly direction at a dangerous, unlawful and excessive rate of speed of at least 90 miles per hour, and on the wrong side of said highway, to wit his left hand side, the defendant, Charlie Powell drove said Ford automobile into the Plymouth automobile in which the said Ethel S. Healan was riding with such force and violence as to wreck and demolish said Plymouth automobile and kill the said Ethel S. Healan instantly. 9. That the defendant Charlie Powell was a dangerous and reckless driver of automobiles and had the reputation for speeding and driving automobiles at an excessive, illegal, and dangerous rate of speed so as to endanger the property and lives of persons using the highways, and this reputation was known to the defendant Carlus Gay, or in the exercise of ordinary care and diligence could and should have been known to him. 10. All of the aforesaid injury and damage was directly and proximately caused by the following acts of negligence on the part of the defendants in the operation of said Ford automobile and the driving of the same into and against the automobile in which Ethel S. Healan was riding, to wit: (a) Driving said Ford automobile at a speed greater than 55 miles per hour, in violation of the law of Georgia, the same being negligence per se. (b) Driving said automobile on the left of the center line of said highway while meeting said Healan car. (c) Failing to turn to his right of the center of said highway so as to pass and allow the Healan car to pass, without interference with said Healan car, in the violation of the law of Georgia, the same being negligence per se; (d) Failing to turn his car to the right so as to give one-half of the traveled highway to Healan's car, the same being then and there practicable, so as to allow Healan's car to pass without interference, in violation of the law of Georgia, the same being negligence per se; (e) In driving said automobile up said hill at said excessive, unlawful and rapid rate of speed, of more than 55 miles per hour, the same being faster than was reasonable and safe, having due regard for the width, grade and character of the road and the aforesaid use being made of said road and highway at said time and place; (f) In driving said `souped up' automobile, that is a Ford automobile with a Cadillac automobile motor in the same, which motor was too powerful for said lighter automobile, thereby making said Ford automobile harder to control and drive with safety to the property and person of the users of said highway, and thereby causing said automobile to be an instrument dangerous to the life and limb of the users of said highway; (g) In failing to sound the horn of said automobile as it approached the crest of the hill so as to give warning to others on said highway and to the said Healan of the approach of said Ford automobile, the view ahead not being clear as to automobiles coming over said hill. (h) In failing to have said automobile under control so as to prevent the same from hitting and striking the Healan car. 11. That at the time of the commission of all of said acts of negligence by the defendant Charlie Powell, the said Ford automobile was being used by him in the scope of his employment and in the performance of his duties therein, and with the knowledge and consent of the defendant Carlus Gay and said defendant Gay is in law responsible for the same. 12. Defendant, Carlus Gay, was further negligent in that: (a) He employed the defendant Charlie Powell to drive said automobile, knowing, or in the exercise of ordinary care should have known, that said Powell was a notoriously reckless driver who habitually drove automobiles at a high and dangerous rate of speed and at a speed far in excess of the lawful rate of speed for driving automobiles. (b) He furnished defendant Powell a dangerous instrumentality and thereby endangered the life and caused the death of Ethel S. Healan, in that he furnished the said Powell a Ford automobile that had been `souped up' by having a too powerful motor, to wit a Cadillac automobile motor, put into said lighter car, thereby making said lighter car harder to control when driven at an excessive rate of speed; and these acts of negligence contributed to the injury and damage caused in said case, and with the other acts of negligence herein set out were the sole, proximate, and direct cause of said injury and damage." The allegations of the petition in case No. 34459 are the same except that it is therein alleged, of course, that James F. Healan was driving the automobile, and that he was free from fault and negligence, etc. Defendant Carlus Gay filed general and special demurrers to the petition, the judge of the superior court overruled the same, and the exception here is to that ruling.
1. Several grounds of the demurrer in both cases attack allegations of the petition on the ground that the same are multifarious, contradictory, and impertinent, or that there is a misjoinder of parties plaintiff and defendant and causes of action; that the particular allegations are irrelevant, immaterial and not germane to the alleged cause of action; that they are merely conclusions and opinions of the pleader not based on any facts alleged, and constitute no issuable facts, state erroneous conclusions of law, and that the same should be stricken. A demurrer, being a critic, must itself be free from imperfection. It must lay its finger, as it were, on the very point. Douglas, Augusta c. Ry. Co. v. Swindle, 2 Ga. App. 550, 556 ( 59 S.E. 600); Dunn v. Freeman, 24 Ga. App. 504 (5) ( 101 S.E. 393); Central of Georgia Ry. Co. v. Sharpe, 83 Ga. App. 12, 22 (3) ( 62 S.E.2d 427); Veal v. Beall, 189 Ga. 31 (2), 34 ( 5 S.E.2d 5); Bowen v. Samuels, 204 Ga. 718 (2), 720 ( 51 S.E.2d 667). A demurrer which fails to point out wherein a particular allegation is irrelevant, immaterial, prejudicial, not germane or impertinent, or does not constitute issuable facts, or states erroneous conclusions of law, or which does not point out wherein or how the petition is multifarious or contradictory, is altogether too vague and general to be considered by this court. Accordingly grounds 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 13, and 19 (c) of the demurrer in case No. 34458 and grounds 1, 2, 3, 4, 6, 7, 8, 9, 10, 12, and 18 (c) of the demurrer in case No. 34459 will not be considered.
2. Paragraph 11 (e) of the petition in case No. 34459 and paragraph 12 (e) of the petition in case No. 34458 alleged that the defendant Powell was negligent in driving the automobile at an unlawful and rapid rate of speed of more than 55 miles per hour, the same being faster than was reasonable and safe, having due regard for the width, grade, and character of the road and the use being made of the road and highway at that place. These allegations were demurred to in both cases as being conclusions of the pleader, not supported there or elsewhere in the petition with any issuable facts alleged showing what the width, grade, and character of the road were at the time and place of the injury, or what there was to prevent normal driving and use of the road at that time. These grounds of the demurrer are without merit. Elsewhere in both petitions it was alleged that the defendant Charlie Powell was driving the automobile furnished him by the defendant Gay at a speed of 90 miles per hour. Such an allegation of fact, without more, was sufficient to show the negligent conduct charged in the paragraphs of the petition demurred to by these paragraphs of the demurrers, and the trial court did not err in overruling ground 12 of the special demurrer in case No. 34458 and ground 11 of the special demurrer in case No. 34459.
3. The plaintiffs alleged that the defendant Powell was negligent in failing to sound the horn of the automobile he was driving and to give warning to others on the highway of the approach of his automobile, the view over the hill not being clear, and that he was negligent in failing to have his automobile under control so as to avoid hitting or striking the Healan car. These allegations were demurred to on the ground that they were irrelevant and immaterial, state conclusions and opinions of the pleader, and set forth no valid or legal ground of negligence against the defendant, and are not supported by any facts alleged therein or elsewhere. These cases are joint actions against Powell, the deputy sheriff who was driving the automobile which collided with the automobile occupied by the Healans and driven by Mr. Healan. Gay is charged with negligence in furnishing to Powell, known by him to be a reckless driver, a "souped up" automobile. The allegations thus demurred to are proper allegations of negligence against the driver of the automobile which collided with the Healans' car. While such acts of negligence would not be imputable to the defendant Gay, under the ruling which we are making in the 4th division of this opinion, they are not demurrable on the grounds set forth above. The trial court did not err in overruling these grounds of special demurrer in each case.
All the allegations of negligence charged against Powell are demurred to by Gay and by him moved to be stricken as to that defendant because they are irrelevant and immaterial as to him. As pointed out above, such acts of negligence are not imputable to Gay, but are proper and necessary allegations in the action against Powell, and for this reason the judge of the superior court did not err in overruling these grounds of special demurrer.
4. The plaintiffs alleged that the defendant Charlie Powell was a dangerous and reckless driver of automobiles; that he had the reputation for speeding and driving automobiles at an excessive, illegal, and dangerous rate of speed, and that this reputation was known to the defendant Gay, or in the exercise of ordinary care should have been known to Gay. It was also alleged that Gay furnished to Powell a "souped up" automobile, the same being a 1950 Ford coach with a Cadillac motor in it and that so equipped the Ford was overpowered and difficult to manage. As grounds of negligence against Gay, the plaintiffs charged that he was negligent in employing Powell, knowing that he was a reckless and dangerous driver, and that Gay was negligent in furnishing him a "souped up" automobile. These allegations of negligence were demurred to specially on the grounds that they were irrelevant, immaterial, and not germane to the alleged cause of action, were highly impertinent, inflammatory, and prejudicial, were mere conclusions and opinions of the pleader, and do not constitute any valid or legal grounds of negligence against the defendant Gay. These grounds of demurrer together with the general demurrers to the petition raise substantially the same questions, namely, whether the allegations of fact contained in the petition together with the allegations of negligence charged against Gay were sufficient to set forth a cause of action against him.
If a petition sets forth a cause of action under any theory, it is not subject to dismissal on general demurrer. Hall v. John Hancock Mutual Life Ins. Co., 50 Ga. App. 625 (2) ( 179 S.E. 183). While a deputy sheriff is not an employee of the sheriff, but is an employee of the county wherein he serves, and is merely appointed by the sheriff (Code § 24-2811), and while the sheriff is liable only for the official acts (that is acts virtue officii or colore officii) of the deputy (Code § 24-201); Culpepper v. U.S. F. G. Co., 199 Ga. 56, 33 S.E.2d 168), and while under such rules of law the sheriff is not personally liable for the negligent acts of his deputy which acts are in no way connected with the performance of his official duties, and while, under the foregoing rulings, the allegations of the petition respecting Powell being an employee of Gay, and asserting liability of Gay for the acts of Powell on the theory of respondeat superior, are not sufficient for that purpose — the petition does allege a cause of action based on the act of Gay, as an individual, in furnishing to Powell, as another individual, known by Gay to be a reckless and dangerous driver of automobiles, an automobile which was a dangerous instrumentality, particularly in the hands of one such as Powell was alleged to be, in that said automobile, a Ford, was equipped with a too-powerful motor, a Cadillac motor which made the same difficult to be used by the latter, who is not qualified to drive it, which is known to the owner, and injury results to a third person by reason of the incompetence of the driver, a jury is authorized to find this to be such negligence as would authorize recovery against the owner. Accordingly, the petition here, which alleges these facts, is not subject to general demurrer." Burks v. Green, 85 Ga. App. 327 ( 69 S.E.2d 686). This is true whether such driver be an agent of the owner or not. NuGrape Bottling Co. v. Knott, 47 Ga. App. 539 (1) ( 171 S.E. 151). See also Crisp v. Wright, 56 Ga. App. 338 ( 192 S.E. 390).
The petition in the instant case alleged a cause of action based on Gay's negligence in furnishing to Powell a high-powered "souped up" automobile, knowing Powell to be a reckless, dangerous, and habitual driver at excessive speeds, and the trial court did not err in overruling the general demurrers or in overruling the special demurrers to the allegations of negligence against Gay respecting the furnishing of the automobile to Powell.
Under the foregoing ruling, the allegations of the petition as to Gay's liability as the employer of Powell and the allegations seeking to charge Gay with the negligence of Powell on the theory of respondent superior, should have been stricken on special demurrer attacking them as being vague, indefinite, and uncertain in that it was not alleged whereby or in what manner Powell was an employee of Gay or wherein or in what manner he was acting within the scope of his alleged employment, and in that no facts were alleged which show that the relationship of employer and employee or of master and servant existed between the defendants. It follows that the trial court erred in overruling the 5th ground of demurrer in each case.
5. Factitious demands by special demurrer are not favored. Reasonable certainty is all that is required in pleading, and a party need not allege his evidence in order to sustain his cause of action. Webb Cotton Co. v. Gordon, 19 Ga. App. 63 (1) ( 90 S.E. 1032); Louisville c. R. Co. v. Watts, 20 Ga. App. 637 (1) ( 93 S.E. 255); Rhodes v. Industrial Finance Corp., 64 Ga. App. 549, 553 ( 13 S.E.2d 883); Hobbs v. Holliman, 74 Ga. App. 735, 739 (2) ( 41 S.E.2d 332); Womack v. Central Georgia Gas Co., 85 Ga. App. 799, 806, 807 (8a) ( 70 S.E.2d 398). Paragraph 17 of the demurrer in case No. 34459 seeks additional information as to the employment and occupation of the plaintiff's father, and as to the source and nature of his alleged $5,000 per year income. The paragraphs demurred to in this ground of the demurrer allege that the petitioners' father was at the time he was killed 66 years of age, and was engaged in the business of trading in livestock and cattle, trucks, and automobiles, and other commodities, and in farming, raising truck and vegetables, and was earning $5,000 per year; that he was able-bodied and in good normal health and had an expectancy of 11.27 years; and that by reason of the facts set forth in the petition the plaintiffs had been injured and damaged in the sum of $56,300. These allegations were sufficiently full and explicit and set forth sufficient of the plaintiffs' claim against them was, and the trial court did not err in overruling the special demurrers thereto.
Judgments affirmed on condition that allegations of both petitions as demurred to by paragraph 5 of the defendant's special demurrer in each case, and as referred to in the 4th division of the opinion, be stricken from the petitions, otherwise the judgments to stand reversed.
Sutton, C. J., and Felton, J., concur.