Hines v. Bell, s. 38831
| Decision Date | 29 June 1961 |
| Docket Number | 38834,38833,38832,No. 1,Nos. 38831,s. 38831,1 |
| Citation | 104 Ga.App. 76,120 S.E.2d 892 |
| Parties | Clifford HINES et al. v. R. J. BELL. Clifford HINES et al. v. Katherine N. BELL. Clifford HINES et al. v. D. L. MILAM. Clifford HINES et al. v. Wilma MILAM |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. An allegation in the petition that the owner of a motor vehicle allowed a third party to operate it, without more, is subject to demurrer. The consent of the owner to a third party to operate the vehicle, standing alone, is not sufficient to impose liability upon the owner.
2. A petition charging certain acts as being negligent without characterizing them as 'gross' is not subject to demurrer on the grounds that it was duplicitous, multifarious, and a misjoinder in that it joined in the same count allegations of ordinary and gross negligence. Questions of gross or ordinary negligence being questions of fact and not of law, are as a rule to be determined by the jury.
3. (a) An allegation in the petition that the defendant had the reputation of being a dangerous and reckless driver of automobiles, for speeding, driving at excessive and illegal speeds, and for being an incompetent and irresponsible driver of automobiles is improper and subject to demurrer, since the issue is the negligence or nonnegligence of the driver at the time and place of the collision, and each such transaction is to be ascertained by its own circumstances and not by the reputation or character of the parties.
(b) An allegation in the petition that the owner of the car had knowledge, or in the exercise of ordinary care should have known, that the driver whom he allowed to operate the car was a dangerous, reckless, and incompetent driver of automobiles and had such a reputation is subject to demurrer. The allegation that he knew or should have known is equivocal, and will be construed as asserting merely the conclusion of the pleader that the defendant had constructive knowledge. Under Georgia law actual knowledge of the incompetency is necessary to impose liability upon the owner for negligent acts of a driver operating with consent of the owner but not as his servant or agent.
4. The mere fact of ownership of a motor vehicle is not sufficient to impose liability on the owner for injuries caused by the driving of a third party.
The plaintiffs in these four cases, respectively, are the two injured parties bringing actions for their own injuries, and their husbands, suing for the loss of their services, who brought actions against Clifford Hines and Ralph Allen d/g/a Allen Motor Co., for injuries and loss of services arising out of an automobile collision between the motor vehicle of one of the plaintiffs and an automobile owned by the defendant Allen and being operated by the defendant Hines.
These cases were argued together, and were treated by counsel as all involving identical questions. The following factual summation, although stated in the singular, applies as to the pertinent parts in each of the four cases.
To the original petition the defendant Ralph Allen five special demurrers, four of which were withdrawn and the fifth ow which was sustained. The plaintiff then amended the petition, adding certain paragraphs to the original petition and adding a separate count. To the petition as amended the defendant Allen filed renewed and additional demurrers totaling seventeen in number. The defendant Hines filed five additional demurrers to the amended petition, and the defendant Allen filed eight additional demurrers to the amended petition. Following this, the trial judge sustained nine of the defendant Allen's renewed and additional demurrers, and overruled eight of them; of the defendant Hines' additional demurrers, demurrer number 5 was sustained and numbers 1 through 4 were overruled of the additional demurrers; of defendant Allen's two were sustained and six were overruled.
Following this procedural skirmishing, the plaintiff filed as an amendment a completely new petition. This petition eliminated some of the paragraphs previously attacked by the multitudinous special demurrers. The rewritten amended petition was met by a renewal of all the previous special demurrers to count 1 and a general demurrer to count 2, together with a renewal of all of the general and special demurrers previously filed, plus eight special demurrers to count 2.
Finally, the trial judge overruled all the general and special demurrers on January 4, 1961, on which date the plaintiff filed an amendment to count 2 by adding paragraph 5A, which read as follows: 'At all times herein defendant Hines was operating said motor vehicle with the consent, knowledge, acquiescence and approval of defendant Allen.' The defendant Allen thereafter filed renewed and additional general and special demurrers which renewed and insisted upon each and all of the prior general and special demurrers to each count of the plaintiff's petition. These last 'renewed and additional general and special demurrers of the defendant Allen' attacked paragraph 5A to count 2 of the amended petition upon the grounds 'that the allegations contained therein are irrelevant, immaterial, prejudicial, not germane or pertinent to the issues involved, and that said allegations do not constitute any issuable fact, for the reason that the alleged operation of the automobile by the defendant Hines with the consent, knowledge, acquiescence, and approval of the defendant Allen does not in any was allege or seek to allege any liability as against this defendant for the operation of the automobile, for nowhere in said allegations is the said defendant Hines alleged to be the agent of the defendant Allen nor alleged to be operating said automobile in the scope of his authority nor are there any facts alleged to create such general relationship of agency as required by law, and further, for the reason that the alleged consent, knowledge, acquiescence and approval of the defendant Allen is insufficient to create the relationship of agency between the defendants for the operation of said automobile at the time and place alleged.'
The defendant Hines also filed renewed and additional general and special demurrers which were identical with the above final demurrers filed by the defendant Allen.
The final action of the trial court resulted in the overruling of the renewed and additional general and special demurrers of both defendants, to which rulings exceptions were taken.
Calhoun & Calhoun, Walter W. Calhoun, Atlanta, for plaintiff in error.
James L. Bullard, Clarence J. Jackson, Atlanta, for defendant in error.
These four cases are treated by the court, as they were by counsel, as involving identical questions and as based upon similar pleadings in all relevant aspects. While applicable to each of the cases, the discussion is limited to the singular number. Although the numerical references are keyed to the record in Case No. 38831, the rulings are applicable and controlling on apposite situations in each of the cases.
1. In considering this appeal we direct our consideration first to the issue raised as to whether the trial judge erred in overruling the special demurrer to paragraph 5A of count 2 of the amended petition. Paragraph 5A alleged that: 'At all times herein defendant Hines was operating said motor vehicle with the knowledge, consent, acquiescence, and approval of defendant Allen.' The demurrer charges in substance that the allegation is irrelevant, immaterial, prejudicial, not germane or pertinent to the issues involved, since knowledge, consent, approval, and acquiescence given by the owner to the driver, standing alone, is not the basis for the imposition of liability upon the owner for the operation by the driver with the owner's consent.
We agree that the simple allegation, standing alone, that one of the defendants was operating the automobile of the other with the owner's consent is not sufficient as a basis for the imposition of liability. The trial court erred in overruling paragraph 4 of the renewed and additional demurrers of the two defendants to paragraph 5A of count 2 of the amended petition.
2. The next attack by demurrer upon count 2 was on the ground that it was duplicitous, multifarious, and a misjoinder in that it alleged in the same count two different degrees of care and purported acts of negligence. The argument is made that allegations of ordinary negligence cannot be joined in the same count with allegations of gross negligence. While the principle may be true, there is no classification into degrees of the negligence charged in the allegation fo count 2. The defendant cites the case of Pope v. Seaboard Air Line R. Co., 88 Ga.App. 557, at page 563, 77 S.E.2d 55, at page 59, in which this court quoted with approval from an earlier case, 'Their [the railroad's] employment of an improper person to come in contact with the public as their agent would be gross misconduct.' But this case is not pertinent, as there is not in this jurisdiction any classification of negligence as 'gross misconduct.' The degrees of negligence are described in Code §§ 105-201 to 203 as ordinary, slight, and gross negligence. We do not interpret the Pope case as authority for the view that a master's employment of one with a violent and ungovernable temper constitutes gross negligence. The case talks merely in terms of negligence without classifying it. Furthermore, it is elementary that questions of gross negligence, being questions of fact and not of law, are as a rule to be determined by the jury. Hennon v. Hardin, 78 Ga.App. 81, 83 ,50 S.E.2d 236. The same rule applies to questions of ordinary and slight negligence. Wallace v. Clayton, 42 Ga. 443, 447(2); Frye v. Pyron, 51 Ga.App. 613, 181 S.E. 142. The trial judge properly overruled special demurrer 2 of the additional demurrers of the defendant Clifford Hines, and special demurrer number 6 of the...
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