Jones v. Dixie Drive It Yourself System, 37145

• Citation: 97 Ga.App. 669,104 S.E.2d 497
• Decision Date: 13 May 1958
• Docket Number: No. 2,No. 37145,37145,2
• Parties: Otto JONES v. DIXIE DRIVE IT YOURSELF SYSTEM, Atlanta Company, Inc., et al
• Court: United States Court of Appeals (Georgia)

Page 497

104 S.E.2d 497

97 Ga.App. 669

Otto JONES v. DIXIE DRIVE IT YOURSELF SYSTEM, Atlanta Company, Inc., et al.

No. 37145.

Court of Appeals of Georgia, Division No. 2.

May 13, 1958.

Rehearing Denied May 28, 1958.

Syllabus by the Court

Code (Ann.) § 92A-9916 making it a misdemeanor to rent a motor vehicle to another knowing it is about to be operated on a public street unless a legal operator's or chauffeur's license shall first be exhibited has for its purpose the protection and promotion of the safety of other persons using the streets. Accordingly, a pedestrian upon a sidewalk who is injured by the negligence of an incompetent driver in driving up on the sidewalk and running over such pedestrian is within the class of persons for whose benefit the statute was passed, and may join as a codefendant to his cause of action a company engaged in the renting out of automobiles who turned one of its vehicles over to such unlicensed driver in violation of its statutory duty, and may charge such violation as negligence per se as to him concurring with the negligence of the driver of the vehicle in the infliction of his injuries.

Otto Jones filed an action for damages in the Superior Court of Fulton County against Dixie Drive It Yourself System, Inc., the corporation owing and renting the automobile which injured the plaintiff; Midwest & Southern Builders, Inc., the corporation which rented the automobile from Dixie, and Imogene Blair, an employee of Midwest & Southern Builders, Inc. who, allegedly acting as its agent and within the scope of her employment, procured the automobile in accordance with the instructions of her employer and then drove it within the City of Atlanta in such negligent and unlawful fashion as to run over the plaintiff, who was standing on a sidewalk at the time. General demurrers of Dixie Drive It Yourself System, Inc. were sustained and that demurrant was stricken as a party defendant, to which judgment the plaintiff excepts.

Hurt, Gaines, Baird, Peek & Peabody, W. Neal Baird, James A. Stanfield, Parker & Parker, Atlanta, for plaintiff in error.

T. J. Long, Ben Weinberg, Jr., Atlanta, for defendant in error.

TOWNSEND, Judge.

It is alleged that Dixie Drive It Yourself System is engaged in the business of renting automobiles; that under a standing rental plan automobiles were provided on request to Midwest & Southern Builders; that Imogene Blair was instructed by Midwest to procure an automobile pursuant to this rental plan; that she obtained it from the defendant's garage, drove off on her employer's business, and as a result of her negligence injured the plaintiff; that at the time Dixie delivered the automobile to her it made no inquiry as to her ability or competency and did not ascertain whether she had a license to drive an automobile; that as a matter of fact she was an incompetent driver and did not have a license to drive, that in the exercise of ordinary care it should have anticipated that said defendant Imogene Blair was incompetent to drive and that the automobile operated by her was likely to become a dangerous instrumentality, and that by failing to require her to exhibit a legal operator's license before allowing her to remove the car, knowing that it was about to be operated on the public streets, the defendant was guilty of negligence per se in violating Code, § 92A-9916 which provides as follows: 'It shall be a misdemeanor for any person to lend or rent to another a motor vehicle knowing the same is about to be operated upon the public roads or highways in this State or upon the public streets of any incorporated village, town or city in this State, unless the person shall exhibit a legal operator's or chauffeur's license.'

In Huckabee v. Grace, 48 Ga.App. 621, 632, 173 S.E. 744, 750, it was held: '(a) Actionable negligence consists in a violation of some duty owing to another person; (b) in order for the violation of some statutory duty to be negligence per se, the person claiming it as such must be within the class for whose benefit the statute was passed; (c) if there is no person upon whom the violation of the statute can operate there is no breach of the duty; and (d) the court in determining whether the violation of a statutory requirement is negligence per se, as to the person complaining thereof upon which a cause of action will rest, will look to the particular statute in respect to its purposes; that is, the evils it was intended to guard against and the persons it was intended to protect.' In that case it was held that an ordinance regulating the speed of vehicles in crossing intersections was enacted for the protection of persons using such streets. In Whitley Construction Co. v. Price, 89 Ga.App. 352, 79 S.E.2d 416, statutes giving to the State Highway Department authority to set special restrictions on the speed of vehicles under certain circumstances, and the erection of signs restricting speed in an area designated as a school zone were declared to be for the benefit of all persons using the highway within such zones. In London v. Atlanta Transit Co., 91 Ga.App. 753, 757, 87 S.E.2d 103, and Gleason v. Rhodes Center Pharmacy, 94 Ga.App. 439, 449, 95 S.E.2d 293, laws placing a duty on motorists to signal a stop were applied as rules for the benefit of vehicles following on the highway. In Williams v. Grier, 196 Ga. 327, 336, 26 S.E.2d 698, it was held that a violation of ordinances prohibiting the parking of motor vehicles in no-parking zones constituted negligence per se as to others using the streets, as they were within the class of persons protected thereby. In Bozeman v. Blue's Truck Line, Inc., 62 Ga.App. 7, 9, 7 S.E.2d 412, and Washington v. Kemp, 97 Ga.App. 235, 102 S.E.2d 910, a statute making it a crime to park on a highway within 8 feet of the center line was held enacted for the benefit of all persons meeting or following the parked vehicle. In Sprayberry v. Snow, 190 Ga. 723, 10 S.E.2d 179, 182, relating to violation of that statute and others relating to control of the automobile and use of lights, the court said: 'All those laws were designed for safety of the general public in relation to person or property or both. They all contemplate safety for all users of the highways and do not exclude pedestrians.' From the above, and applying the...