General Motors Corp. v. Jenkins

• Decision Date: 20 December 1966
• Docket Number: 2,Nos. 42163,Nos. 1,42164,3,s. 42163,s. 1
• Citation: 114 Ga.App. 873,152 S.E.2d 796
• Parties: GENERAL MOTORS CORPORATION v. Ione JENKINS, by Guardian et al. Marlow DANIELS et al. v. Ione JENKINS, by Guardian et al
• Court: Georgia Court of Appeals

Page 796

152 S.E.2d 796

114 Ga.App. 873

GENERAL MOTORS CORPORATION v. Ione JENKINS, by Guardian et al.

Marlow DANIELS et al. v. Ione JENKINS, by Guardian et al.

Nos. 42163, 42164.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Dec. 20, 1966.

Certiorari Denied Feb. 23, 1967.

Syllabus by the Court

1. Where a general demurrer to a petition is sustained with a specified number of days in which it may be amended and an amendment is filed within the time limited, and subsequently, prior to a hearing on the new and renewed demurrers the petition is again amended, it is not error to overrule an objection to the second amendment on the ground that it was filed too late.

2. The petition fails to state a cause of action against General Motors Corporation.

3. In the absence of any pleaded provisions of the contract between the manufacturer and the dealer, where the contract itself would determine whether the dealer was acting as agent for the manufacturer or as an independent contractor, the allegations of agency by which it is sought to render the manufacturer responsible for any negligence of the dealer in failing to discover and remedy the defective condition after it has purchased and prior to its resale of the automobile should have been stricken as conclusions not supported by the facts pleaded.

4. A repairman owes an original duty to the public to use ordinary care in making repairs so as not to endanger the person or property of others by his negligent performance, when the consequences of such conduct may be foreseen.

This is a tort action brought by the plaintiff, a guest passenger in an automobile driven by the son of the original purchaser, against the manufacturer and dealer from whom the car was purchased, for serious and permanent injuries sustained when the vehicle, which had been driven about 2260 miles, without warning and for no apparent reason veered sharply to the left of the highway, developed a total malfunction of both the steering and braking mechanisms, and struck a cement culvert which caused it to overturn. The upset occurred April 15, 1962. After numerous amendments to the petition, general and special demurrers of both the manufacturer and dealer were overruled, and these judgments are enumerated as error in the separate appeals of the defendants.

King & Spalding, Charles H. Kirbo, R. Byron Attridge, John C. Staton, Jr., Atlanta, for appellant, General Motors Corp.

Swift, Currie, McGhee & Hiers, William W. Horton, Atlanta, Spivey & Carlton, Milton A. Carlton, Swainsboro, for appellants, Marlow Daniels and others.

Florence H. Dendy, Cullen M. Ward, Atlanta, Thomas M. Odom, Millen, George W. Fryhofer, Waynesboro, for appellees.

PER CURIAM.

1. The first petition in this case filed January 23, 1963, was amended on June 5, 1964, by striking its contents and filing a rewritten petition. On September 25, 1964, the court sustained general demurrers of both defendants and granted 30 days leave to amend; this time was by further order extended to November 23, 1964. On November 20, the plaintiff again amended by striking the pleadings filed and substituting another rewritten petition, to which demurrers and objections were filed. Another amendment was added October 20, 1965, which was objected to, among other reasons, because it was not filed prior to the expiration of the time allowed for amendment by the court's first order on demurrers as later extended. The contentions are that under the law of the case the stricken petition of June 5, 1964, failed to set forth a cause of action; that the defect was not cured by the rewritten petition of November 20, 1964, and that the amendment of October 20, 1965, came too late. A final order was entered overruling these objections on January 12, 1966, and also overruling the general and sustaining certain special demurrers. It is settled by Northside Manor, Inc. v. Vann, 219 Ga. 298, 133 S.E.2d 32 that, where a general demurrer is sustained with a stated number of days in which an amendment may be filed, and no such amendment is offered within the time limited, it is the law of the case that (1) the original petition failed to set out a cause of action, and (2) an amendment offered after the time limited is nugatory. Where, however, a material amendment is in fact allowed and filed subject to demurrer or objection within the time allowed by the court's order, and where nothing in such original order purports to dismiss the petition in praesenti, the question of the petition's sufficiency is opened for a fresh adjudication. Perkins v. First National Bank of Atlanta, 221 Ga. 82(7), 143 S.E.2d 474. This being so, where the petition is again amended prior to any ruling on the demurrers filed to the petition as amended, the court may properly consider, in passing on the sufficiency of the petition as a whole, amendments subsequently filed, and if the pleadings in their final form set out a cause of action he may properly overrule the renewed general demurrer. Bradshaw v. Crawford, 77 Ga.App. 441, 49 S.E.2d 169; Smith v. Bugg, 35 Ga.App. 317(1), 133 S.E. 49. We do not mean by this that, if the petition as first amended is so utterly lifeless that there is nothing to amend by, a later amendment might cure the defect; but where, as here, the petition is in fact materially amended, and does present enough for adjudication, then a subsequent amendment is not to be factitiously disallowed where it does in fact tend to complete and perfect the cause of action already set out. The facts here do not bring the case within the ruling in Simpson v. Hayes, 208 Ga. 754, 69 S.E.2d 567. There it had become the law of the case both that the original petition failed to set out a cause of action, and that the first amendment filed within the time allowed by the court failed to add any relevant and material matter. After a decision to that effect in Hayes v. Simpson, 83 Ga.App. 22, 62 S.E.2d 441 the plaintiff again attempted to amend, long after the time for amendment had run out, and the situation was then just as though no amendment had been offered prior to the expiration of the time allowed in the court's order sustaining the general demurrer, which puts this case on a par with Northside Manor, Inc., supra. In the present case the court properly considered the last rewritten petition along with the amendment of October 20, 1965.

2. Where a vehicle is brought to an automobile dealer by its owner for the purpose of having it repaired and the owner reveals to the dealer the fact that there is a dangerous defect in the vehicle, the failure of the dealer to discover and correct the defect when he could have done so by the exercise of ordinary care relieves the manufacturer of liability, unless the manufacturer should have foreseen that a dealer might fail to discover and remedy the defect by the exercise of ordinary care. The petition in this case fails to make this one allegation which would bring the manufacturer's liability into being. Southern Railway Co. v. Webb, 116 Ga. 152, 42 S.E. 395, 59 L.R.A. 109; Restatement of the Law of Torts, Vol. 2, § 452(2). See comment on Subsection (2) at pages 488 and 489; 'd' under Subsection (2), 'e', 'f' and illustration 10. See also § 447(a), (b) and (c). See Maytag Co. v. Arbogast, 42 Ga.App. 666, 667(1), 157 S.E. 350, which recognizes that the rule that the dealer's failure to inspect is not an intervening cause might be different where the dealer had knowledge of the defective condition; Harley v. General Motors, 97 Ga.App. 348, 103 S.E.2d 191 (1958); Elrod v. King, 105 Ga.App. 46, 49, 123 S.E.2d 441; City of Villa Rica v. Couch, 5 Cir. 1960, 281 F.2d 284; Drazen v. Otis Elevator Co., 96 R.I. 114, 189 A.2d 693 (1963); Ford Motor Co. v. Atcher, 310 S.W.2d 510 (Ky.1957); E. I. Du Pont De Nemours & Co. v. Ladner, 221 Miss. 378, 73 So.2d 249 (1954); Rulane Gas Co. v. Montgomery Ward & Co., 231 N.C. 270, 56 S.E.2d 689 (1949); Ford Motor Co. v. Wagoner, 183 Tenn. 392, 192 S.W.2d 840, 164 A.L.R. 364 (1946); Kline v. Moyer, 325 Pa. 357, 191 A. 43, 46, 111 A.L.R. 406; Ford Motor Co. v. McDavid, 4 Cir. 1958, 259 F.2d 261, cert. den. 358 U.S. 908, 79 S.Ct. 234, 3 L.Ed.2d 229; Nishida v. E. I. Du Pont De Nemours & Co., 5 Cir. 195, 245 F.2d 768; Crude Oil Contracting Co. v. Insurance Co. of North America, 10 Cir., 1941, 118 F.2d 476; Annotation, 164 A.L.R. 371. 2 Harper & James, The Law of Torts, 1555, § 28-10.

The court erred in overruling the general demurrer of General Motors Corporation.

3. Is the manufacturer also liable as principal for any negligence of the dealer as agent in failing to discover and remedy the dangerous condition created by the loose rear suspension axle bolt? Nothing else appearing, a simple statement that the wrongful act was committed by the defendant's agent or servant in the prosecution of the principal's business and within the scope of the employment or agency is sufficient to invoke the doctrine of respondeat superior, but where the special facts by which the pleader claims that the relationship of principal and agent exists are set out, these facts take precedence over the conclusory statement and will control in determining whether an agency has been properly alleged. Conney v. Atlantic Greyhound Corp., 81 Ga.App. 324(1, 3), 58 S.E.2d 559. In addition to the conclusory allegation that the manufacturer, through its agent the dealer, committed all acts of negligence alleged against the latter, the following facts are set out: General Motors is in the business of manufacturing automobiles for sale through authorized franchised dealers; the defendant dealer and the corporation entered into a written contract making the dealer an authorized service agent for the purpose of selling and servicing GMC products, the contract being a personal service contract under which it was the dealer's duty to provide prompt and efficient service, receive and investigate complaints, inspect products before sale and...