Carreras v. Austell Box Bd. Corp., 58915

• Decision Date: 07 May 1980
• Docket Number: No. 58915,58915
• Parties: CARRERAS et al. v. AUSTELL BOX BOARD CORPORATION et al.
• Court: Georgia Court of Appeals

Page 792

267 S.E.2d 792

154 Ga.App. 135

CARRERAS et al. v. AUSTELL BOX BOARD CORPORATION et al.

No. 58915.

Court of Appeals of Georgia.

Argued Oct. 31, 1979.

Decided March 13, 1980.

Rehearing Denied March 26, 1980.

Certiorari Denied May 7, 1980.

R. Michael Souther, Michael Mears, Decatur, for appellants.

Wilbur C. Brooks, Ronald A. Lowry, Atlanta, for appellees.

SOGNIER, Judge.

This action for damages arose when a truck owned by defendant Austell Box Board Corporation (hereafter Austell) ran into the rear of the Carreras' automobile, which was stopped waiting for the traffic on a single-lane bridge. Austell's truck was being driven by one of its employees, Baxter, who was also a defendant below. The principal issue raised by plaintiff in the pretrial order was the negligent operation of Austell's truck by Baxter. However, an issue raised by the evidence was whether Austell was negligent in inspecting and maintaining the truck's brakes. The jury entered a verdict for the defendants and the Carreras' appeal, contending the trial court erred (1) by instructing the jury that it could not return a verdict for appellants against Austell unless it also returned a verdict for appellants against Baxter; (2) by failing to instruct the jury on recharge as to the difference between the potential liability of Austell based solely on the negligence of Baxter pursuant to the doctrine of respondeat superior, and the potential direct liability of Austell based upon its duty to keep the brakes of its truck in proper working order as required by statute; (3) by denying appellant's motion for a new trial; and (4) by concluding and determining that no issue was raised as to the independent liability of Austell based on its failure to maintain properly the brakes on its truck, as the appellants did not raise the issue in the pretrial order. As both Enumerations 1 and 3 require reversal, we will confine our opinion to those two enumerations.

1. In regard to Enumeration 1, the trial court charged the jury that "(i)f you find no negligence on the part of the defendant driver, Baxter, then there could be no recovery against him or the defendant, Austell Box Board Corporation." This was error. Appellants' evidence at trial sought to establish two grounds for recovery; negligent operation of the truck by Baxter, and negligent inspection and maintenance of the truck's brakes by Austell. If the jury believed the driver Baxter was not negligent, then the trial court's instruction required the jury to find for Austell, the owner, even if the jury found Austell negligent in the inspection and/or maintenance of the brakes on the truck. However, Austell is liable for its negligence independent of any negligence on the part of its driver. See Cravey v. J. S. Gainer Pulpwood Co., 128 Ga.App. 465, 467, 197 S.E.2d 171 (1973). "The statutory duty to keep an automobile equipped with proper brakes is imposed on the owner, and the owner (Corporation) is liable for any injuries proximately caused by the defective condition of the brakes if he permits another person to operate it while it is in that condition, when he knows or through the exercise of ordinary diligence could and should have known of its defective condition. (Cits.) . . . (a)nd when an injury can be traced directly to a wrongful act, and but for such wrongful act it could not reasonably be supposed that the injury would have resulted, this essentially antecedent act may be said to be the 'proximate cause' of the injury." Gregory v. Ross, 214 Ga. 306, 311, 104 S.E.2d 452, 456 (1958). Thus, if the jury believed Baxter was not negligent, the jury was prohibited, improperly from considering any allegation of negligence on the part of Austell. This was error. Lewis v. Harry White Ford, 129 Ga.App. 318, 199 S.E.2d 599 (1973).

2. As to Enumeration 3, in examining the pretrial order in this case, it is clear that appellants did not allege any acts of negligence on the part of Austell. However, the defendants' outline of the case in the pretrial order stated that "defendants were not guilty of any negligence which caused or contributed to the plaintiff's alleged injuries, by way of a sudden emergency created by a brake failure which the defendants were unable to foresee or prevent and, therefore, plaintiffs would not be entitled to recover any sum of the defendants whatsoever." Further, defendants notified plaintiff in the pretrial order that one of the defense witnesses at trial would be "(a) mechanic at Austell Box Board concerning condition of brakes following accident." Both sides presented evidence on this issue without objection by any party or the court.

Appellants contend that even though the pleadings were not amended formally, such an amendment is not necessary as Code Ann. 81A-115(b) (CPA § 15(b)) provides, in pertinent part, that "(W)hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary . . . to raise these...