Gay v. Healan, s. 34458

• Decision Date: 02 July 1953
• Docket Number: No. 1,Nos. 34458,34459,s. 34458,1
• Citation: 77 S.E.2d 47,88 Ga.App. 533
• Parties: GAY v. HEALAN et al. (two cases)
• Court: Georgia Court of Appeals

Page 47

77 S.E.2d 47

88 Ga.App. 533

GAY v. HEALAN et al. (two cases).

Nos. 34458, 34459.

Court of Appeals of Georgia, Division No. 1.

July 2, 1953.

Rehearing Denied July 14, 1953.

Syllabus by the Court.

1. Special demurrers which attack particular allegations of the petition as being multifarious, contradictory, impertinent, irrelevant, and immaterial, mere conclusions, and as constituting a misjoinder of parties plaintiff and defendant and of causes of action, but which do not specifically point out wherein or how such defects in the petition exist, are too vague and incomplete to be considered by this court.

2. An allegation that the defendant was driving the automobile involved in a collision with one driven and being ridden in by the plaintiffs' parents, at a speed of 90 miles per hour, is a sufficient allegation of fact to support a charge of negligence in driving the automobile at an unlawful and rapid rate of speed of more than 55 miles per hour, and faster than was reasonable and safe, having due regard for the width, grade, character, and use then being made of the road.

3. Allegations of negligence against one of the joint defendants, though not imputable to the other under the special facts of this case, are nevertheless proper averments in the petition, and the judge of the superior court properly refused to strike them on the demurrer of the defendant to whom they did not apply.

4. If a petition sets forth a cause of action on any theory, it is not subject to dismissal on general demurrer. While a sheriff is not an employer of his deputy, and is not, as such, personally liable under the doctrine of respondeat superior, for the merely negligent torts of the deputy not committed by virtue of or under color of his office, and while the petitions did not state causes of action against the sheriff on this theory--nevertheless, the petitions did set forth causes of action against the defendant Gay based on his furnishing to the defendant Powell, who was known to Gay as a reckless, dangerous, and habitual driver of automobiles at excessive speeds, an automobile which had been 'souped up' and made too powerful and difficult to manage when driven at an excessive speed, and the overruling of the general demurrers was not error.

5. Factitious demands by special demurrer are not favored, and the allegations of fact in the petition being sufficiently clear and definite to inform the defendant of the cause of action against him, the judge of the superior court did not err in overruling the grounds of special demurrer calling for additional allegations of fact.

Glenn P. Healan, W. Doyle Healan, individually and as next friends of Carl Healan and Joyce Healan, minor children of James F. Healan and Ethel S. Healan, deceased and Mrs. Dan E. Dunlap, Mrs. Lois Crafton, Mrs. Julian C. Shepard, Mrs. H. Ross Swafford, Mrs. Jean Thomason, and Mrs. L. A. Million, sued Carlus Gay and Charlie Powell for damages for the death of their parents, James F. Healan and Ethel S. Healan, alleged to have resulted from the negligence of Powell in operating an automobile owned by Gay and furnished by him to Powell at the time of the injury to the Healans. The material allegations of the two petitions are substantially the same, one being an action for the death of the plaintiffs' father and the other being an action for the death of their mother. In case No. 34458 the petition alleged (omitting formal and immaterial parts): '4. That on May 20, 1952, and at the time of the collision hereinafter set forth and described, the defendant Carlus Gay was sheriff of Laurens County, Georgia, and the defendant Charlie Powell was deputy sheriff of said county, employed by and acting and serving under said sheriff, within the scope of his employment by said sheriff, and in the performance of his duties as such employee and deputy sheriff, and was under the control and direction of his employer, the defendant, Carlus Gay, sheriff as aforesaid, who was then and there responsible for the acts of the said Charlie Powell hereinafter set forth. 5. That about 11 0'clock on the morning of May 20, 1952, the said Ethel S. Healan, the mother of your petitioners, was a guest passenger in a 1948 Plymouth coach model automobile, which was then and there being driven by her husband, James F. Healan on U. S. Highway No. 441 in said county, in a southerly direction toward Dublin, Georgia, and about seven miles north of that city, and on his side, that is the right hand side of said highway in the direction in which said automobile was traveling, and at a rate of speed of from 35 to 40 miles per hour. 6. That the said Ethel S. Healan did not have any control or direction over the operation of said automobile in which she was then and there riding, and was then and there in the exercise of ordinary care and diligence, and was free from fault and negligence and could not have avoided the injury received by her by the exercise of ordinary care and diligence. 7. That on said highway and at said time and place, the defendant Charlie Powell was driving an automobile furnished him by the defendant, Carlus Gay, for use in the performance of his duties, within the scope of his employment, as deputy sheriff, to wit, a 1950 Ford coach model automobile, with a Cadillac automobile motor in the same. 8. That while approaching a hill on said highway and driving said Ford automobile in a northerly direction at a dangerous, unlawful and excessive rate of speed of at least 90 miles per hour, and on the wrong side of said highway, to wit his left hand side, the defendant, Charlie Powell drove said Ford automobile into the Plymouth automobile in which the said Ethel S. Healan was riding with such force and violence as to wreck and demolish said Plymouth automobile and kill the said Ethel S. Healan instantly. 9. That the defendant Charlie Powell was a dangerous and reckless driver of automobiles and had the reputation for speeding and driving automobiles at an excessive, illegal, and dangerous rate of speed so as to endanger the property and lives of persons using the highways, and this reputation was known to the defendant Carlus Gay, or in the exercise of ordinary care and diligence could and should have been known to him. 10. All of the aforesaid injury and damage was directly and proximately caused by the following acts of negligence on the part of the defendants in the operation of said Ford automobile and the driving of the same into and against the automobile in which Ethel S. Healan was riding, to wit: (a) Driving said Ford automobile at a speed greater than 55 miles per hour, in violation of the law of Georgia, the same being negligence per se. (b) Driving said Automobile on the left of the center line of said highway while meeting said Healan car. (c) Failing to turn to his right of the center of said highway so as to pass and allow the Healan car to pass, without interference with said Healan car, in the violation of the law of Georgia, the same being negligence per se; (d) Failing to turn his car to the right so as to give one-half of the traveled highway to Healan's car, the same being then and there practicable, so as to allow Healan's car to pass without interference, in violation of the law of Georgia, the same being negligence per se; (e) In driving said automobile up said hill at said excessive, unlawful and rapid rate of speed, of more than 55 miles per hour, the same being faster than was reasonable and safe, having due regard for the width, grade and character of the road and the aforesaid use being made of sai road and highway at said time and place; (f) In driving said 'souped up' automobile, that is a Ford automobile with a Cadillac automobile motor in the same, which motor was too powerful for said lighter automobile, thereby making said Ford automobile harder to control and drive with safety to the property and person of the users of said highway, and thereby causing said automobile to be an instrument dangerous to the life and limb of the users of said highway; (g) In failing to sound the horn of said automobile as it approached the crest of the hill so as to give warning to others on said highway and to the said Healan of the approach of said Ford automobile, the view ahead not being clear as to automobiles coming over said hill. (h) In failing to have said automobile under control so as to prevent the same from hitting and striking the Healan car. 11. That at the time of the commission of all of said acts of negligence by the defendant Charlie Powell, the said Ford automobile was being used by him in the scope of his employment and in the performance of his duties therein, and with the knowledge and consent of the defendant Carlus Gay and said defendant Gay is in law responsible for the same. 12. Defendant, Carlus Gay, was further negligent in that: (a) He employed the defendant Charlie Powell to drive said automobile, knowing, or in the exercise of ordinary care should have known, that said Powell was a notoriously reckless driver who habitually drove automobiles at a high and dangerous rate of speed and at a speed far in excess of the lawful rate of speed for driving automobiles. (b) He furnished defendant Powell a dangerous instrumentality and thereby endangered the life and caused the death of Ethel S. Healan, in that he furnished the said Powell and Ford automobile tht had been 'souped up' by having a too powerful motor, to wit a Cadillac automobile motor, put into said lighter car, thereby making said lighter car harder to control when driven at an excessive rate of speed; and these acts of negligence contributed to the injury and damage caused in said case, and with the other acts of...