Syllabus by the Court
1. The petition was not subject to general demurrer in that it did not allege that the defendant's alleged conduct constituted the violation of a duty owed by the defendant to the plaintiff under the facts alleged.
2. (a) The petition was not subject to general demurrer in that it failed to allege that the acts of the defendant's servants were done within the scope of their employment, (b) or because it showed on its face that the plaintiff was barred by his own negligence.
3. The evidence did not demand a finding for the defendant in any and all events.
Dr. Robert P. Shinall sued Capital Automobile Co. for damages for personal injuries alleged to have been caused by the negligence of the defendant. With reference to the injuries and the alleged negligence of the defendant, the petition, as amended, alleged as follows: '3. For many years, the company has been a distributor of Cadillac automobiles, selling and servicing both new and used Cadillacs, and trading in used cars in connection with the sale of new Cadillacs. 4. In the course of its business, the company has for many years, solicited service and repair work upon Cadillac automobiles, and has held itself out to the public as employing expert mechanics and service personnel, indeed skilled and qualified in regard to the mechanical condition and operation of Cadillacs. 5. At the same time, the company has solicited trade-in of used cars upon the sale of new Cadillacs, and has held itself out to the public as employing in its new car sales department and in its used car sales department and as its appraisers, personnel thoroughly familiar with the qualities, characteristics and operation of Cadillacs. 6. The company has for many years held itself out to the public as a highly reputable and reliable dealer, whose sales managers and salesmen may be relied upon. 7. On February 24, 1958, the new car sales department of the company was in charge of Mr. Roy Roberts, new car sales manager, by proper authority of the company. 8. At that time, Mr. Randy Gobson was a salesman in the employ of the company. 9. One Mr. Adams was then an appraiser in the employ of the company. 10. At the same time, Nathaniel Brown was a regular employee of the company. 11. In February 1956, Dr. Shinall purchased from Capital Automobile Co. a new 1956 Cadillac four-door 60 special sedan. He paid the purchase price in full. 12. At the time of that sale, the company represented to Dr. Shinall that that particular automobile was an excellent automobile, in good condition, and sale for him to operate. 13. Thereafter at frequent intervals the electrical system of that car became defective in its operation. The electrically operated heater, windows, air conditioning and starter failed to function properly. Electric fuses and bulbs burned out. Prior to February 24, 1958, frequent repairs were made upon the vehicle at Capital Automobile, at the expense of Dr. Shinall. Nevertheless the electrical system of the Cadillac continued to give difficulty. 14. In May, 1957, because of those difficulties in the electrical system of the vehicle, a factory representative from the manufacturer went over the entire electrical system of this Cadillac. This examination occurred at the place of business of Capital Automobile Company in Atlanta. 15. After these efforts by Dr. Shinall to obtain correction of the difficulties with the electrical system of the car, it continued to give further trouble from time to time. The starter would fail to work about ten percent of the time. 16. On February 24, 1958, in the afternoon, Dr. Shinall went to Capital Automobile Company, at its place of business in Atlanta, and that company, acting through Mr. Roy Roberts, Mr. Randy Gibson and Mr. Adams, attempted to induce and persuade Dr. Shinall to trade in that Cadillac upon a new one. The company had a pecuniary interest in maintaining his good will, as a past customer who had purchased a new car from the company and still owned it, and as a prospective customer for the purchase of a new car from the company, and as a service customer who had often patronized the service department of the company. 17. Upon being told on February 24, 1958
by Dr. Shinall that the starter of that 1956 Cadillac would occasionally fail to work, Capital Automobile Company undertook and assumed to show Dr. Shinall how he could start that 1956 Cadillac when the starter failed to work. This was done in the following manner: The Company, speaking through Mr. Roy Roberts, new car sales manager, suggested that employee Nathaniel Brown show Dr. Shinall how to start the car with the screw driver, in case the car went dead while he was out making a call. Furnishing such instruction and information to him was customer service, the promotion of good will and satisfaction among customers, and the promotion of the company's sales and service business. The company, acting in this manner through Mr. Roberts, Mr. Gibson and Nathaniel Brown, showed Dr. Shinall and demonstrated to him how to start the car by placing the metal shaft of a screw driver in contact with the terminals of the starter in Dr. Shinall's 1956 Cadillac. In that demonstration, the handle of the screw driver was held in the hands of Nathaniel Brown and its metal shaft was placed in contact with the electric terminals of the starter. The company, first through Mr. Roberts and then through Mr. Gibson, assured Dr. Shinall that there was no danger in this procedure, and through Nathaniel Brown, in the presence of Mr. Roberts and Mr. Gibson and with their full knowledge, acquiescence and at least tacit concurrence and approval, stated to Dr. Shinall that the only trouble that starting the car that way (by the screw driver) could cause Dr. Shinall was if the car had been running and the exhaust manifold was hot, his hand might be burned if it touched the heated exhaust manifold. Providing this demonstration and furnishing all this instruction and information to Dr. Shinall were undertaken and performed by Capital Automobile Company as customer service to Dr. Shinall as its customer in the purchase of Cadillacs and as a patron of the service department of the Capital Automobile Company. This customer service was rendered by the company in promoting its sales and service business, with the purpose of inducing Dr. Shinall and others to patronize Capital Automobile Company. Capital Automobile Company knew and intended that Dr. Shinall would rely on it and on said demonstration and instruction and assurance and start his Cadillac as thus indicated. 18. The starting of a 1956 Cadillac by placing the metal shaft of a screw driver in contact with the electric terminals of the starter, while the screw driver is held by its handle, when the person starting the engine in this way is not a mechanic, is not good practice in the operation of a 1956 Cadillac. 19. Capital Automobile Company knew that that method of starting the engine was not good practice in the operation of a 1956 Cadillac. 20. The method of starting the engine of a 1956 Cadillac involves danger of severe electric shock to the person using that method, if he is not a mechanic. 21. The company knew, of this danger. 22. The electrical system of the 1956 Cadillac is physically and electrically complex. It will at times have high voltage of several thousand volts capable of producing severe shock. 23. These facts were then well known to Capital Automobile Company. 24. In the exercise of ordinary care, all these facts in regard to the danger of that method of starting the engine by a screw driver, and the danger of shock to the person using it, and the characteristics of the 1956 Cadillac electrical system, were known or in the exercise of ordinary care should have been known by each of the following persons: (a) Mr. Roy Roberts; (b) Mr. Randy Gibson; (c) Mr. Adams, the appraiser; (d) Nathaniel Brown. 25. Capital Automobile Company knew or in the exercise of ordinary care should have known that Dr. Shinall was a doctor and not a mechanic. 26. It is bad practice for a Cadillac distributor or dealer to give to the owner of a 1956 Cadillac, if he is not known to be a mechanic, the instruction that h...
