Burks v. Green, 33919
| Decision Date | 19 February 1952 |
| Docket Number | No. 2,No. 33919,33919,2 |
| Citation | 85 Ga.App. 327,69 S.E.2d 686 |
| Parties | BURKS v. GREEN et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where one supplies another an automobile 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.
Mrs. Alma Burks filed suit in the Superior Court of Fulton County, joining as defendants Mrs. Lenora Wheeler, West Peachtree Motors Inc., and Ralph Green, an employee of the corporation. The petition alleges in substance: that the plaintiff was a passenger in an automobile operated by Mrs. Wheeler, which had a 'standard' gear-shift; that she drew up to the curb in front of the motor company to discharge a passenger, and, while there, the defendant Green came out and undertook to interest her in purchasing a new 1951 Pontiac automobile with hydromatic drive; that at Green's invitation they got into the Pontiac, and the defendant Green drove them around the block, explaining to Mrs. Wheeler the mechanism located on the steering wheel; that he did not give any explanation whatever as to the brake and accelerator; that, after they returned to the front of the motor company, Mrs. Wheeler told the defendant Green that she wanted to discuss the matter with her son before buying a new car, whereupon Green told her to take the automobile and drive it so that her son could see it; that he then got out of the automobile and Mrs. Wheeler slid over into the driver's seat; that the plaintiff remained in the automobile; that Mrs. Wheeler told Green she knew nothing about the operation of a car with hydromatic drive, whereupon Green assured her he had given her all necessary instructions and that she would have no trouble with the controls; tht Mrs. Wheeler was an experienced driver with a standard type automobile but that she had never driven one with hydromatic drive, and neither she nor the plaintiff knew anything about the difference between the two types of automobiles; that Green knew this; that he also knew, but failed to inform Mrs. Wheeler, that whereas a standard type automobile has three foot controls, the second from the left being the brake, a hydromatic drive automobile has only two foot controls, the second from the left being the acclerator, and that 'said Green knew, or from the facts which were known to him should have realized, that said Pontiac automobile with hydromatic drive, while being operated by said Mrs. Wheeler without any more instructions than he had given her, was, or was likely to be, dangerous for the use which he authorized her to make of it; that said Green had no reason to believe that said Mrs. Wheeler or the petitioner would realize the danger of driving said Pontiac without more instructions than he had given; that said Green failed to exercise reasonable care to inform said Mrs. Wheeler of the facts which would likely make her operation of said automobile dangerous, to wit, that the first foot pedal from the left was the brake and not the clutch, and that the second foot pedal from the left was the accelerator and not the brake, and that if she stepped upon the accelerator instead of the brake, it would likely create a dangerous situation.' It was also alleged that Green knew or should have known that under these circumstances a negligent operation of the foot pedals of the Pontiac might be expected, and that the driving of said automobile while so operated was likely to be dangerous. The petition further alleges that the defendant Mrs. Wheeler then drove the Pontiac without examining the foot pedals; that, as she reached the first intersection, the traffic light turned red; that she then looked at the foot pedals for the first time and, 'although the brake and accelerator pedals were in the same place and in the same relative position that they occupied in a standard drive automobile, said Mrs. Wheeler stepped on the second pedal from the left, which was the accelerator, instead of stepping on the brake which was the first pedal from the left, and as she did so said automobile lunged forward and into the side of a large oil truck which was crossing' the intersection. As a result of the collision the plaintiff suffered ceertain described injuries.
General demurrers to the petition were sustained as to the defendants Ralph Green and West Peachtree Motors Inc., and the exceptions are to these rulings.
Geo. Starr Peck, Atlanta, for plaintiff in error.
Harold Karp, Ferrin Mathews, Atlanta, for defendant in error.
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 Or. 286, 243 P. 778; Jones v. Raney Chevrolet Co., 213 N.C. 775, 197 S.E. 757; 2, ...
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