In Wright v. Lail, 105 Ga. App. 261 (124 S.E.2d 487), the passenger helped to listen and attempted to locate a rattle in the car.Summary of this case from Durrett v. Farrar
DECIDED JANUARY 10, 1962. REHEARING DENIED FEBRUARY 1, 1962.
Action for damages. Cobb Superior Court. Before Judge Manning.
Vernon W. Duncan, for plaintiff in error.
Powell, Goldstein, Frazer Murphy, Frank Love, Jr., Earl J. Van Gerpen, contra.
1. The petition stated a cause of action, and the court erred in sustaining the defendant's general demurrer.
2. Allegations of inducement which are introductory to the substance of the complaint and which merely serve to show the history of the case and the surrounding conditions and circumstances where the alleged injuries were sustained are not subject to demurrer on the ground that such allegations are irrelevant, immaterial, and conclusions of the pleader.
3. For reasons stated in the opinion in this case, the court erred in sustaining certain grounds of the defendant's special demurrer to the petition.
DECIDED JANUARY 10, 1962 — REHEARING DENIED FEBRUARY 1, 1962.
Joe Wright filed a suit for damages against Richard Lail. The petition, in substance, alleges that the plaintiff was visiting the home of the defendant; that the defendant asked the plaintiff to ride in his (defendant's) station wagon for the purpose of locating a rattle in it; that the plaintiff entered the station wagon on the right side, and the defendant drove it "back and forth in his driveway" and asked the plaintiff if he could locate the rattle; that the station wagon was equipped with an automatic transmission; that after the defendant had driven the station wagon back and forth in the driveway several times they were unable to locate the rattle; that the plaintiff at no time had control over the acts or conduct of the defendant in the operation of the station wagon; that the defendant stopped the station wagon, and the plaintiff proceeded to open the right hand door thereof, turned to the right and had placed his feet on the ground attempting to get out of the station wagon; that as plaintiff proceeded to turn himself to the right while still sitting on the seat of the station wagon with his back turned to the defendant, and with his feet on the ground attempting to leave the station wagon, the defendant allowed his foot to slip off the brake pedal onto the gas pedal causing the station wagon to "launch" forward; that the door frame of the right front door of the station wagon hit the plaintiff in the right side knocking him off balance and to the left; as the plaintiff was knocked to the left, the defendant suddenly jammed the brakes of the station wagon thereby causing the door to swing forward and then backward against the plaintiff knocking him backwards, turning him around and causing him to fall on the driveway on his left hip; that, at said time and place, the defendant, Richard Lail, knew that the plaintiff was proceeding to leave the station wagon, and that there was nothing to prevent the defendant from seeing and observing the plaintiff leaving the right front seat of the station wagon.
The plaintiff's specifications of negligence are that the defendant was grossly negligent toward the plaintiff in the following respects: (a) In failing to keep said station wagon under proper control at all times, the same constituting gross negligence. (b) In failing to exercise due care for the safety of the plaintiff, which constitutes gross negligence. (c) In allowing his foot to slip off the brake, which constitutes gross negligence. (d) In allowing his foot to hit the gas pedal while the car was in gear as the plaintiff was attempting to remove himself from the car, which constitutes gross negligence. (e) In injuring and damaging the plaintiff as alleged herein, which constitutes gross negligence. (f) In failing to observe the plaintiff attempting to get out of the station wagon, which constitutes gross negligence.
The defendant filed general and special demurrers to the petition, which were sustained and the petition was dismissed. This ruling is assigned as error.
1. "Where . . . the petition in an action for damages set out a cause of action against the defendant for negligence under a statement of facts showing a duty on the part of the defendant to exercise ordinary care to avoid injuring the plaintiff, and a violation of that duty, the trial court did not err in overruling the general demurrers to the petition on the ground that the plaintiff had characterized the acts of the defendant as gross negligence but had failed to allege facts sufficient to constitute gross negligence. A different situation is presented when the facts alleged in the petition place on the defendant only the duty to exercise slight care." Holland v. Boyette, 93 Ga. App. 497 ( 92 S.E.2d 222). To the same effect see Western Union Tel. Co. v. Harris, 6 Ga. App. 260 ( 64 S.E. 1123); Blanchard v. Ogletree, 41 Ga. App. 4 ( 152 S.E. 116); Fountain v. Tidwell, 92 Ga. App. 199 ( 88 S.E.2d 486); U.S. Fidelity c. Co. v. Sanders, 94 Ga. App. 904 ( 96 S.E.2d 531); Morris v. Cochran, 98 Ga. App. 786 ( 106 S.E.2d 836).
We are of the opinion that the plaintiff in the instant case alleged facts showing the measure of care required by the defendant to the plaintiff not to be slight care, but to be ordinary care. It is alleged that the defendant asked the plaintiff to ride in the station wagon for the purpose of locating a rattle in same. This allegation shows that the plaintiff rode in the vehicle not as a guest for his own pleasure and convenience, but he was in the station wagon for the sole benefit of the defendant. Accordingly, the plaintiff, as a passenger, was an invitee to whom the defendant owed the duty of exercising ordinary care to avoid injuring him. Holtsinger v. Scarbrough, 69 Ga. App. 117 ( 24 S.E.2d 869); Nash v. Reed, 81 Ga. App. 473 ( 59 S.E.2d 259); Perry v. Poss, 86 Ga. App. 169 ( 71 S.E.2d 283); Taylor v. Austin, 92 Ga. App. 104 ( 88 S.E.2d 190); Fowler v. Glover, 105 Ga. App. 221 ( 123 S.E.2d 903). Cf. Central Railroad v. Brinson, 70 Ga. 207 (5a).
Being unable to find the cause of the rattle in the station wagon, the defendant brought it to a stop. The plaintiff opened the door of the station wagon on the right side and turned to get out. At this point of time the defendant "allowed his foot to slip off the brake pedal onto the gas pedal causing said . . . station wagon to launch forward", thereby knocking the plaintiff, who was attempting to leave the vehicle, onto the driveway causing injuries to his person. The defendant contends that these allegations, at best, show an "accident", "momentary inattention", or "momentary loss of presence of mind", which are insufficient to show the defendant failed to exercise "slight care", citing Tucker v. Andrews, 51 Ga. App. 841 ( 181 S.E. 673). But having concluded that the defendant was charged with the duty of exercising ordinary care under the facts alleged in the plaintiff's petition, it is only necessary to determine whether the petition alleged facts showing no more than an accident for which no one would be liable, or alleged facts to show negligent acts of the defendant which could be the proximate cause of the plaintiff's injury. The allegation that the defendant "allowed his foot to slip off the brake pedal onto the gas pedal" imports conscious knowledge on the part of the defendant whereby he let his foot slide onto the accelerator. Colonial Stores, Inc. v. Scholz, 73 Ga. App. 268 ( 36 S.E.2d 189). Whether the defendant failed to exercise ordinary care or whether his actions constituted an inadvertent accident, are jury questions.
"Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for a jury, and a court should not take the place of the jury in solving them except in plain and indisputable cases." Southern Bakeries Co. v. White, 103 Ga. App. 146 ( 118 S.E.2d 724), and cases cited therein.
The petition stated a cause of action, and the court erred in sustaining the general demurrer.
2. The defendant specially demurred to several paragraphs of the petition on the ground that the allegations were irrelevant, immaterial, or conclusions. We find that these paragraphs contain allegations which are either allegations of fact germane to the cause of action alleged, or are allegations of inducement which merely serve to show the history of the case and the surrounding conditions and circumstances where the cause of action arose. Ga. c. R. Co. v. Rutherford, 104 Ga. App. 41 ( 121 S.E.2d 159), and cases cited therein; Etheridge Motors, Inc. v. Haynie, 103 Ga. App. 676 ( 120 S.E.2d 317). Grounds 2, 3, 4, 5, and 6 of the special demurrer are not meritorious, and the court erred in sustaining them.
3. The defendant demurred to the plaintiff's specifications of negligence (see the foregoing statement of facts) upon the grounds that the allegations are conclusions of the pleader unsupported by properly pleaded facts to constitute gross negligence. While it was not necessary for the plaintiff to allege facts showing the defendant was grossly negligent, we must rule upon the specific points raised by the demurrer.
We cannot say that the allegations that the defendant failed to observe the plaintiff attempting to get out of the station wagon and allowing his foot to slip off the brake pedal and hit the gas pedal, while the plaintiff was attempting to leave the car, did not amount to gross negligence. See Jordan v. Fowler, 104 Ga. App. 824 ( 123 S.E.2d 334). "When certain acts and conduct are alleged to be gross negligence, and reasonable minds might disagree as to the degree of negligence evidenced by such acts, the degree of negligence is a question for jury determination." Garnto v. Henson, 88 Ga. App. 320 (1) ( 76 S.E.2d 636). See Brown v. Binns, 87 Ga. App. 485 ( 74 S.E.2d 370); Hennon v. Hardin, 78 Ga. App. 81 ( 50 S.E.2d 236). It was error to sustain grounds, 9, 10, and 12 of the special demurrer.
However, the failure of the defendant to "exercise due care for the safety of the plaintiff" is no more than a charge of a failure to exercise ordinary care. Criswell Baking Co. v. Milligan, 77 Ga. App. 861 ( 50 S.E.2d 136). By definition, ordinary negligence does not amount to gross negligence. See Insurance Co. of North America v. Leader, 121 Ga. 260 ( 48 S.E. 972); Brown Store Co. v. Chattahoochee Lumber Co., 121 Ga. 809 ( 49 S.E. 839). The court did not err in sustaining grounds 7 and 8 of the special demurrer.
Judgment reversed in part; affirmed in part. Nichols, P.J., and Jordan, J., concur.
ON MOTION FOR REHEARING.
The facts of the McBee case, supra, show the line of demarcation between cases where the host driver is liable for failure to exercise slight care to his guest passenger, and the ones where he is liable for failure to exercise ordinary care. The plaintiff in the McBee case, supra, rode with the defendant at the defendant's request, but he did not ride to help the defendant or for any benefit to the defendant "other than the pleasure of the plaintiff's company." In the instant case the plaintiff rode with the defendant to help the defendant locate a rattle in his station wagon. This was of some benefit to the defendant.
We quote the applicable rule announced in Holtsinger v. Scarbrough, 69 Ga. App. 117, (1, 2), supra: "1. A `guest' in an automobile, within the contemplation of the law that towards him the host owes only the duty of exercising slight care, is one who takes a ride in the automobile merely for his own pleasure or on his own business and without making any return or conferring any benefit upon the host other than the pleasure of his company. 18 Words and Phrases, 839. 2. The status of one in or upon any part of an automobile for the purpose of conferring some benefit upon the owner and driver thereof at his request is that of an invitee, towards whom the owner and driver owes the duty of exercising ordinary care." (Emphasis added). See also Fowler v. Glover, 105 Ga. App. 221, supra.
Motion for rehearing denied.