Garnto v. Henson

• Decision Date: 09 June 1953
• Docket Number: No. 2,Nos. 34654,34655,s. 34654,2
• Citation: 88 Ga.App. 320,76 S.E.2d 636
• Parties: GARNTO v. HENSON. HENSON v. GARNTO
• Court: Georgia Court of Appeals

Page 636

76 S.E.2d 636

88 Ga.App. 320

GARNTO v. HENSON.

HENSON v. GARNTO.

Nos. 34654, 34655.

Court of Appeals of Georgia, Division No. 2.

June 9, 1953.

Syllabus by the Court.

1. 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.

2. A simple allegation alleging that one is acting as agent of another, together with facts showing such acts to be within the scope of his employment, is not demurrable.

3. A wife who sustains personal injuries as the result of the negligence of the defendant's agent acting within the scope of his employment may sue the employer directly under the doctrine of respondeat superior, regardless of the fact that the defendant's agent who committed the tortious act is her husband, against whom she would be precluded from recovery by virtue of the marital relationship.

4. The presumption that in purchasing necessaries the wife is acting as agent of her husband is rebuttable, and she may recover for such expenses as medical and hospital bills in her own right in cases where the assumption of the obligation was her own personal obligation, and the services were not extended on the credit of the husband.

Mrs. Dorothy M. Henson filed suit in the Superior Court of Washington County, against Leo Garnto, for damages resulting to her from an automobile collision. The amended petition alleged in substance: that the driver of the automobile in which she was riding at the time as a guest was Verlin C. Henson, her husband; that said driver was the agent of the defendant, having been designated by him to drive the defendant's wife and children from Jacksonville to Jacksonville Beach, Florida, which he was doing; that the defendant's said agent was guilty of gross negligence, in that he was driving along the highway following another automobile at a speed of 55 miles per hour, at a distance of only 10 feet behind the preceding car, which distance was not safe, and was too short to permit him to stop; that the lead automobile came to a sudden stop, and the defendant's agent, being unable to stop in the short distance between the cars, drove his automobile violently into the lead car, as the result of which collision the plaintiff sustained certain described injuries. General and special demurrers were filed, the court overruling the general demurrer to the petition and sustaining the special demurrer. Exceptions to the overruling of the general demurrer are assigned as error by the defendant in case No. 34654. Exceptions to the sustaining of a special demurrer to the petition are assigned as error by the plaintiff in her cross-bill of exceptions, case No. 34655.

E. T. Averett, E. W. Jordan, Sandersville, for plaintiff in error.

J. D. Godfrey, Casey Thigpen, Sandersville, for defendant in error.

TOWNSEND, Judge.

1. Florida not being one of the original thirteen States, and the law of Florida not being pleaded, it is presumed that such law is the same as the statutes and laws in force in this State. Trustees of Jesse Parker Williams Hospital v. Nisbet 189 Ga. 807(1), 7 S.E.2d 737. Accordingly, for the plaintiff to recover, it is necessary to allege and prove gross negligence on the part of the defendant, Hopkins v. Sipe, 58 Ga.App. 511(2), 199 S.E. 246; and this degree of negligence does not, according to the defendant's contentions, appear from the petition. As to collisions of motor vehicles resulting between vehicles following one another on a highway as a result of 'tailgating'--that is, where the following vehicle is very close upon the one preceding it--it is usually held that the question of whose negligence is the proximate cause of the injury is a jury question. See Bailey Produce Co. v. Harden, 56 Ga.App. 171, 192 S.E. 237; Eidson v. Felder, 68 Ga.App. 188(2), 22 S.E.2d 523; Georgia Power Co. v. Blum, 80 Ga.App. 618(2-c), 57 S.E.2d 18. And where, in such cases, it is alleged that the negligence of one of the defendants, or the sole defendant in the suit, was gross, the degree of negligence also is, except in clear and indisputable cases, a jury question. See, in this regard, White v. Boyd, 58 Ga.App. 219, 198 S.E. 81. No two negligence cases are alike in every particular, and each case must stand on its own bottom. This court would be reluctant to hold as a matter of law that to follow a car down a highway at the rapid speed of 55 miles per hour with less than a car-length of distance between the two vehicles (which is far less than the stopping distance required at this speed) would not constitute negligence. Reasonable minds might well disagree as to the degree of negligence shown, under all the facts of the case, and for this reason a jury question is also presented as to whether the negligence, if it exists, is simple or gross. Georgia Power Co. v. Blum, supra. Nothing to the contrary is held in Epps v. Parrish, 26 Ga.App. 399, 106 S.E. 297, or Townsend v. Minge, 44 Ga.App. 453, 161 S.E. 661, cited by the defendant in error; these cases simply holding that the petition was demurrable in that gross negligence was not charged. In Luxenburg v. Aycock, 41 Ga.App. 722, 154 S.E. 460, it was held that the negligence, although it might have been gross, did not contribute to the injury. Harris v. Reid, 30 Ga.App. 187, 117 S.E. 256, and Yearwood v. Yearwood, 45 Ga.App. 203, 164 S.E. 105, are not at all similar on their facts. The trial court here did not err in overruling the general demurrer to the petition on this ground.

2. A simple direct allegation that the operator, in driving the defendant's family to a designated point in the defendant's automobile, was acting as his agent, is a sufficient allegation of agency. Conney v. Atlantic Greyhound Corp., 81 Ga.App. 324(3), 58 S.E.2d 559. The petition is not demurrable as failing to show an agency relationship. This case differs from Graham v. Cleveland, 58 Ga.App. 810, 200 S.E. 184, cited by the plaintiff in error, in that there the general allegations of agency yielded to specific allegations of fact negativing the relationship of principal and agent.

3. The plaintiff in error further contends that the petition should have been dismissed because it shows on its face that the plaintiff was injured by the act of her husband; that the husband and wife are, in legal fiction, one person, and consequently neither can maintain against the other a civil action based on a tort, Wright v. Wright, 85 Ga.App. 721(1), 70 S.E.2d 152; Carmichael v. Carmichael, 53 Ga.App. 663(1), 187 S.E. 116; Chastain v. Chastain, 50 Ga.App. 241(3), 177 S.E. 828; Code, § 53-501; and that it would be illogical to hold that, although the plaintiff here cannot maintain an action against her husband, she may do so against his employer on the theory of respondeat superior. This question, and similar contentions, have been urged in several other jurisdictions, although it is one of first impression in this...