Dean v. Gainesville Stone Co., 43457
| Decision Date | 08 July 1968 |
| Docket Number | No. 1,No. 43457,43457,1 |
| Citation | 118 Ga.App. 142,162 S.E.2d 858 |
| Parties | William C. DEAN v. GAINESVILLE STONE COMPANY, Inc |
| Court | Georgia Court of Appeals |
Reed & Dunn, R. Elliott Dunn, Jr., Gainesville, for appellant.
Greer, Sartain & Carey, Joe B. Sartain, Jr., Howard T. Overby, Gainesville, for appellee.
Syllabus Opinion by the Court
The only question presented by the appeal in this case is whether the plaintiff's petition states a cause of action sufficient against general demurrer. The defendant's demurrer to the plaintiff's petition as amended was sustained and it is from this order that the appeal was taken.
From the allegations of plaintiff's petition, it appears that he was a self-employed automotive mechanic; that he went to the defendant's premises to deliver a part off a vehicle of the defendant which he had repaired; that when he arrived he was asked by an employee of the defendant, who had the authority to do so, to help him start one of defendant's trucks; that he and defendant's employee pushed the truck so that it would roll down the grade upon which it was situated; that plaintiff, at the request of the defendant's employee, got into the truck and attempted to start it by releasing the clutch while in gear; that when these efforts were unsuccessful, he applied the brakes to stop the truck, but the brake pedal was inoperative; that the truck gained momentum and hit a bump which caused the hood to fly up and through the windshield and block the view; and that plaintiff, having previously seen some men at work in front of him and knowing of their presence, attempted to steer the truck away from their location, but in doing so and before he could stop the truck or get himself out, the truck went over the embankment of a thirty-foot deep hole of which he was unaware and could not have previously observed because of the nature of the terrain. Plaintiff alleges that he was injured as a result of this occurrence and charges the defendant with negligence in that his employee, acting in the prosecution of the defendant's business and within the scope of his authority, (1) failed to advise plaintiff that the brakes were inoperative while knowing they were inoperative, (2) failed to advise plaintiff that the hood was loose and likely to fly up into the windshield while knowing of the same, and (3) failed to advise plaintiff of the hole immediately in front of the vehicle. Held:
1. Implicit in the holding of the Supreme Court in O'Kelley v. Evans, 223 Ga. 512, 156 S.E.2d 450, that an appeal from a judgment sustaining a general demurrer and dismissing the plaintiff's petition is premature where a cross action is still pending in the trial court, is the principle that an appeal, as in the present case, from an order sustaining a general demurrer to plaintiff's petition taken more than 30 days after such order, but within 30 days after the voluntary dismissal by the defendant of his cross action is timely. Accordingly, the motion to dismiss the appeal is without merit.
2. As we view the plaintiff's petition, it sufficiently alleges that the plaintiff was the defendants' invitee. Holtsinger v. Scarbrough,69 Ga.App. 117(2), 24 S.E.2d 869. The duty arising as a matter of law from such relationship is that of ordinary care. Findley v. Lipsitz, 106 Ga.App. 24, 126 S.E.2d 299. One who, at the request of the owner, assists in getting a vehicle started, is not a volunteer. Bramlett v. Hulsey, 98 Ga.App. 39, 104 S.E.2d 614; Harper v. DeFreitas, 117 Ga.App. 236(2), 160 S.E.2d 260 3. "All that a plaintiff need allege to withstand the attack of a general demurrer is the factum of the duty, * * * a violation of that duty, and damages resulting from that violation.' Vickers v. Georgia Power Co., 79 Ga.App. 456, 458, 54 S.E.2d 152; Atlanta Paper Co. v. Sigmon, 82 Ga.App. 730, 734, 62 S.E.2d 363.' Sarno v. Hoffman, 110 Ga.App. 164, 166, 138 S.E.2d 96. In this regard the plaintiff's petition is sufficient. It alleges certain acts by the defendant's employee in breach of the duty owed plaintiff; it alleges damages; and it alleges the damages suffered were proximately caused by the negligence charged.
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