Garver v. Smith, 35345
| Decision Date | 06 October 1954 |
| Docket Number | No. 35345,No. 2,35345,2 |
| Citation | 84 S.E.2d 693,90 Ga.App. 892 |
| Parties | GARVER v. SMITH. . Division |
| Court | Georgia Court of Appeals |
Syllabus by the court.
1. The petition sufficiently alleged the trial court's jurisdiction of the subject matter of the suit, and the defendant waived any jurisdictional defects as to her person
by appearing through her attorneys and pleading to the merits.
2. The petition stated a cause of action under at least two theories, and the trial court did not err in overruling the general demurrers thereto.
3. None of the special demurrers is meritorious.
Wiley F. Smith brought an action for damages against Mrs. Barbara A. Garver. The material allegations of his petition are substantially as follows: 1. The defendant resides at New Haven, Indiana. 2. Jurisdiction of the defendant is acquired for the reason that this cause of action arises from the fact that an automobile driven by William B. Potts, Jr., struck the plaintiff's automobile, damaging the automobile and injuring the plaintiff, on State Highway No. 280, approximately three miles east of the City of Marietta, Cobb County, Georgia. The highway is a public one of the State of Georgia, and the automobile that was being driven by Potts was owned by the defendant and was being used at her instance and request. Under the provisions of the Non-Resident Motorist Act of 1937, Ga.L.1937, pp. 732-734; Code Ann.Supp. §§ 68-801 to 68-806, the Secretary of State of Georgia or his successor in office shall be the true and lawful attorney in fact to accept service of process in this action for and on behalf of said non-resident defendant. 3. The defendant has injured and damaged the plaintiff in the sum of $20,381. 4. On August 29, 1952, at approximately 9 p. m., the plaintiff was driving in his automobile in a westerly direction on what is known as the Access Highway to the Lockheed Aircraft Corporation, being State Highway No. 280. 5. At that time and place it was necessary for the plaintiff to drive his automobile to the right-hand shoulder of the highway to a point approximately 24 feet from the center line of the highway for the purpose of stopping and drying the coils in the motor of the automobile, as he had just prior to this stop driven through approximately one and one-half feet of water which had collected across the highway due to a constant downpour of rain. 6. After the plaintiff had parked his automobile on the shoulder of the highway with all lights burning on the automobile, including both headlights, two tail lights, and a center line, he got out of his automobile. 7. While standing on the right-hand side of his automobile, the plaintiff raised the hood of the car and was in the process of drying the coils leading to the distributor system when Potts, being the agent and servant of the defendant, while driving in a westerly direction on the highway in question, drove the defendant's automobile violently into the left rear side of the plaintiff's car. 8. Potts' carelessness and negligence in driving into the plaintiff's car caused the hood of the plaintiff's car to fall on the plaintiff's right arm and to injure his wrist severely. 9. The plaintiff's wrist was completely splintered and shattered on account of the hood of the car falling on it, and his nervous system was shocked and shattered. 10. The plaintiff's automobile was injured and damaged in enumerated particulars. 11. The plaintiff's car before the accident was worth $400 and after the collision its value was reduced to $250. 12, 13. The plaintiff was forced to undergo medical treatment and incurred therefor enumerated expenses. 14. The defendant knew before turning her automobile over to Potts that Potts was an incompetent and reckless driver; and that, in spite of her knowledge that Potts was incompetent and reckless, she, 'at her instance and request and consent, allowed' him to drive her automobile.
The foregoing damages to the plaintiff were caused by the following acts of negligence of Potts, the agent and servant of the defendant, and are in law chargeable to the defendant: (a) The defendant was negligent and careless in allowing Potts to drive her car in a careless and negligent manner while driving as an agent and servant at a high rate of speed, greater than 55 miles per hour on the highway in question, as he was, at the time and place, unable to control the automobile, and this is negligence per se. (b) The defendant was negligent in alloing her agent and servant, Potts, to operate a motor vehicle on a public highway at a speed that was greater than was reasonably safe, having due regard for the width, grade, character, traffic, and common use of the highway, so as to endanger the life, limb, and property of the plaintiff, in violation of Code § 68-301, which is negligence per se. (c) The defendant was negligent in allowing and entrusting the agent, Potts, with the automobile when she knew him to be a reckless and incompetent driver; (d) The defendant was negligent in that her agent drove into the plaintiff's automobile, parked on the shoulder of the highway. 16. The plaintiff is entitled to recover from the defendant $20,000 for his pain and suffering and the additional sum of $381 for his special damages.
The defendant, through her attorneys, filed general and special demurrers to the petition, which were all overruled, and she has brought the present writ of error to review that judgment.
Haas, White, Douglas & Arnold, Atlanta, for plaintiff in error.
Willingham, Cheney, Hicks & Edwards, Claud Hicks, Marietta, for defendant in...
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