Hertz Driv-Ur-Self Stations v. Benson

• Decision Date: 18 April 1951
• Docket Number: Nos. 33366,33367,DRIV-UR-SELF,2,Nos. 1,s. 33366,s. 1
• Citation: 65 S.E.2d 191,83 Ga.App. 866
• Parties: HERTZSTATIONS, Inc. v. BENSON et al. COWART et al. v. BENSON et al
• Court: Georgia Court of Appeals

Page 191

65 S.E.2d 191

83 Ga.App. 866

HERTZ DRIV-UR-SELF STATIONS, Inc. v. BENSON et al.

COWART et al. v. BENSON et al.

Nos. 33366, 33367.

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

April 18, 1951.

Rehearing Denied in No. 33366, May 18, 1951.

Syllabus by the Court.

1. The charge that the effect of the pleadings was to put the burden of proof on the plaintiff to establish the allegations of the petition, except such allegations as may have been admitted in the pleadings or in open court, was not confusing or misleading, since there were no material admissions in the pleadings as amended, this being specifically pointed out and called to the jury's attention by the trial judge in his charge, and none were made in open court.

2. The requested charge limiting the use of the extra-judicial admissions of the individual defendants against them only was so broad that it would have excluded much of the competent testimony of these defendants, and was properly refused.

3. (a) A bailor for hire, entrusting an automobile to another for immediate operation, has a duty of using ordinary care to ascertain that the automobile has no hidden defects rendering it dangerous, and this duty extends to those persons within the range of foreseeable operation of the automobile. In other words, in the present case the jury was authorized to find that the defendant should have reasonably foreseen that injury might result to someone on or near the highways on which the vehicle with defective brakes was to be operated, and that was all that it was necessary for this defendant to foresee.

(b) The bailor's liability is not determined alone by the provisions and warranties of the bailment contract, but also by the limits imposed by the doctrine of proximate cause, that is, whether the defendant should have foreseen the consequences of his negligence, as a natural and probable result.

(c) 'In order for a party to be liable as for negligence, it it not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result.'

4. It was not error to admit evidence offered by the plaintiff, admissible against the individual defendants, over the objection of the defendant corporation that it was hearsay.

5. It was not reversible error to overrule an objection to a question calling for a conclusion of the witness, where testimony to the same effect was admitted in evidence without objection.

6. Evidence that one of the defendants was driving 'about 50 or 55' miles per hour, together with the other facts and circumstances relating to the collision in question, authorized the charge that operation of a vehicle in excess of 55 miles per hour was negligence per se.

7. The verdict against all three of the defendants was authorized by the evidence and the trial judge did not err in overruling the motions for a new trial.

Smith, Kilpatrick, Cody, Rogers & McClatchey and Hoke Smith, all of Atlanta, for Hertz Driv-Ur-Self Stations, Inc.

Luther C. Hames, Jr., Marietta, for Wade Cowart and others.

Lokey & Bowden, James C. Fickling, Smith, Kilpatrick, Cody, Rogers & McClatchey, and Hoke Smith, all of Atlanta, and Luther C. Hames, Jr., Marietta, for A. O. Benson and others.

SUTTON, Chief Judge.

A. O. Benson sued James K. Wallace and Wade Cowart, whom we shall refer to as the individual defendants, and Hertz Driv-Ur-Self Stations, Inc., which we shall refer to as Hertz, for damages arising out of personal injuries sustained by Benson. The petition made, in substance, the following allegations: On May 22, 1948, Hertz rented to the individual defendants an automobile under an arrangement whereby the individual defendants were permitted to take the automobile and drive it where they pleased, paying Hertz a stipulated amount for each mile the automobile was driven while in their possession. Hertz had previously rented automobiles to the individual defendants under this same arrangement. The brakes on the automobile bailed to the individual defendants on May 22, 1948, were in a worn, defective and unsafe condition, and this condition of the brakes was known to Hertz, or could have been discovered by the exercise of ordinary care. This condition of the brakes rendered the automobile inherently dangerous to operate upon the public highways, and Hertz knew that the automobile was to be operated by the individual defendants upon the public highways and streets. The individual defendants operated the bailed automobile on the night of May 22, 1948, and in the early morning of May 23, 1948. At 1:30 a.m. on May 23rd, they were driving toward Marietta over the four-lane highway between Atlanta and Marietta. As they approached a curve at the intersection of the Smyrna highway, in Cobb County, Georgia, they were driving at a speed greater than what was reasonable and safe, and in excess of 55 miles per hour. The driver applied the brakes as the car rounded the curve to his right, which produced a loud, screeching sound; and because of the defective condition of the brakes and the excessive speed at which the automobile was being driven, it went out of control, swerved suddenly to the right, ran off the highway and struck the plaintiff, who was standing on the shoulder of the highway, 3 feet from the edge of the paved portion. The highway at that place consisted of two concrete traffic lanes, each 18 feet wide, separated by a raised center section 3 feet wide, and there were grass-covered shoulders on both sides of the highway. As the automobile approached this intersection and curve, a dangerous place on the highway, its speed was not reduced, no warning was given of its approach, and the automobile was not under the immediate control of its driver. The highway was free and clear of traffic or any obstruction to the free passage of an automobile going toward Marietta. Hertz was negligent (a) in renting the automobile with worn, defective and unsafe brakes thereon to the individual defendants; (b) in permitting the automobile, inherently dangerous because of its worn, defective and unsafe brakes, to be operated over the public streets and highways; (c) in failing to properly inspect the automobile before renting it to the individual defendants for the purpose of seeing that it had no defects which would render it unsuitable for the purposes for which it was hired; and (d) in failing to comply with the statutory obligation of a bailor for hire to keep the automobile in suitable order and repair for the purposes of the bailment. The individual defendants were negligent (a) in operating the automobile at the time and place alleged at a speed greater than was reasonable and safe with regard to the circumstances so as to endanger the lives, limbs and property of persons lawfully on or near the highway; (b) in operating the automobile at a dangerous rate of speed, exceeding 55 miles per hour; (c) in failing to have the automobile under immediate control; (d) in failing to reduce speed at a curve and intersection or to give warning of the approach of the automobile by horn to otherwise; (e) in operating the automobile across the center section of the highway into the opposite traffic lane and back across the highway into the plaintiff; and (f) in operating the automobile with indifference and disregard of the rights of others, including the plaintiff, in such a manner as to injure the plaintiff. The joint and several acts of negligence of the defendants as alleged were the sole and proximate cause of the plaintiff's injuries and damages. The injuries and damages sustained by the plaintiff were alleged in detail.

The individual defendants in their answers first admitted their operation of the car with defective brakes and the rental of the defective car to them by Hertz, but they denied any negligence in their manner of operation. They made no response to the paragraphs specifying Hertz's negligence and alleging that Hertz knew the automobile was to be operated on the public highways. By amendment, they finally denied all except the jurisdictional allegations, and they denied negligence on the part of any of the defendants in the case. Hertz, in its answer, admitted only the jurisdictional allegation of the petition.

On the trial of the case, the plaintiff introduced the testimony of himself, of his son, of a deputy sheriff of Cobb County, of a person who was going towards Atlanta on the same highway when the plaintiff was injured, of a physician and surgeon who had treated the plaintiff's injuries, and of one of the individual defendants, Cowart, who was driving the bailed automobile which struck the plaintiff. The plaintiff also introduced several photographs of the highway taken at the location where the plaintiff was struck. The individual defendants offered no evidence. Hertz introduced some photographs similar to those of the plaintiff's, and also tendered a photostatic reproduction of a contract in response to a notice to produce the 'rental agreement under which Hertz Driv-Ur-Self Stations, Inc., rented, leased or bailed to James Wallace and/or Wade Cowart a certain Chevrolet, automobile (believed to be a black Chevrolet sedan, Georgia License No. EX 34271), on or about May 22, 1948.' This contract was admitted in evidence. It was signed apparently by an agent for Hertz, and by James K. Wallace, as renter. It acknowledged payment of $12.15 for 83 miles travelled over a period of 14 hours, from 1:54 p.m. on May 22, 1948, to 3:42 a.m. on May 23, 1948. 'Vehicle No. 271' was described as 'Body Type, Sed, Make, Ch,' apparently meaning a Chevrolet sedan. The following provisions of the contract are material to this case: 'In consideration of the covenants herein contained, Hertz Driv-Ur-Self Stations, hereinafter referred to as 'Hertz',...