Landers v. French's Ice Cream Co., 37312

• Decision Date: 22 September 1958
• Docket Number: No. 1,No. 37312,37312,1
• Citation: 106 S.E.2d 325,98 Ga.App. 317,74 A.L.R.2d 1050
• Parties: , 74 A.L.R.2d 1050 John M. LANDERS, by Next Friend, v. FRENCH'S ICE CREAM COMPANY et al
• Court: Georgia Court of Appeals

Page 325

106 S.E.2d 325

98 Ga.App. 317, 74 A.L.R.2d 1050

John M. LANDERS, by Next Friend, v. FRENCH'S ICE CREAM COMPANY et al.

No. 37312.

Court of Appeals of Georgia, Division No. 1.

Sept. 22, 1958.

Rehearing Denied Oct. 14, 1958.

Syllabus by the Court

The plaintiff's petition set forth a cause of action against the defendants who filed general demurrers or oral motions to dismiss in the nature of general demurrers.

John M. Landers, by next friend, sued French's Ice Cream Company; its employee, Charlie Bruce; Charles R. Williams and his mother, Mrs. Norma Williams; and Alvie Honea to recover for injuries received when he was struck by an automobile driven by Charles R. Williams. No demurrers appear from the record to have been filed by either Charles R. Williams or Mrs. Norma Williams. The remaining defendants filed general demurrers or oral motions to dismiss in the nature of general demurrers which contended that the petition failed to set forth a cause of action as to them. Their positions were sustained and the petition dismissed as to them. This judgment was apparently entered after the plaintiff's request for time to amend had been refused by the trial court.

The plaintiff excepts to the refusal of the trial court to allow him time to amend as well as to the other judgments adverse to him.

Ward, Brooks, Parker & Daniel, Cullen M. Ward, Atlanta, for plaintiff in error.

Henry M. Quillian, Jr., Palmer H. Ansley, Bryan, Carter, Ansley & Smith, Edward B. Everett, Smith, Field, Doremus & Ringel, Atlanta, for defendants in error.

NICHOLS, Judge.

It was alleged that the defendant Bruce was the employee of the defendant French's Ice Cream Company and acting within the scope of his employment at all times referred to in the petition. Therefore, for the sake of brevity as well as clarity, since any act of the employee Bruce would be imputable to his employer, these defendants will be referred to jointly as French's. It was alleged that the defendant Charles R. Williams was the son of the defendant Mrs. Norma Williams, that she owned the automobile driven by her son as a family-purpose automobile and that it was so being used at the times referred to in the petition; therefore, these defendants will be referred to jointly as Williams. Inasmuch as the defendant Honea is alleged to be the owner of a family-purpose automobile so being used by his daughter at the times referred to in the petition the actions of this defendant's daughter, which are imputable to this defendant, will be referred to merely as Honea.

The petition alleged that the plaintiff, at east curb of such sreet, that French's truck a child of 5, that he was standing either on the east curb of Hills Avenue, N. W., in the City of Atlanta or immediately by the east curb of such streeet, that French's truck approached from a northerly direction and stopped at a point across the street from the plaintiff for the purpose of selling ice cream products to the children and adults residing in such neighborhood which was a residential district, that such truck was parked at least four feet from the right hand curb, that the Williams automobile and the Honea automobile approached from the south--while French's was attempting to make a sale to the plaintiff--racing side by side at a apeed of approximately 70 miles per hour, 'Petitioner shows that as said automobiles approached the location of said ice cream truck, there not being sufficient room for both said vehicles to pass between said truck and said curb the Oldsmobile [Honea] sped through said opening between said truck at a speed of approximately seventy (70) miles per hour and that the Ford [Williams] automobile swerved to the right to go through said opening between the left side of said truck and east curb of Hills Avenue and just prior to going through said opening observed said child standing at said curb and applied the brakes to said automobile skidding fifty-two (52) feet up hill, striking said child with a violent, forceful, severe and damaging impact, knocking said child twenty-four (24) feet up said hill against the curb and then traveling an additional distance of approximately one hundred five (105) feet up said hill before said Ford automobile stopped. * * * [T]hat for a distance of at least five hundred (500) feet prior to said point of impact both said Oldsmobile and said Ford automobile were being operated at a speed in excess of seventy (70) miles per hour. * * * [T]hat Hills Avenue, N. W. is one of the public highways of the State of Georgia and is located within the city limits of the City of Atlanta, Georgia.' The following ordinances of the City of Atlanta were alleged: 'Section 40.36. Sale of Ice Cream, etc., From Vehicles--Requirements as to parking; Sound Equipment to be Stopped. All vendors or hucksters operating trucks, carts or other types of equipment for the sale of ice cream or other merchandise on the streets of the city shall, before making any sale, park their vehicle at the right curb, and at least eight feet from any other vehicle that may be parked on the street and not less than one hundred feet from any intersecting street. When the vehicle stops, all sound equipment or other device used to notify patrons of the presence of the vendor shall be stopped and shall not be resumed until the vehicle is again put in motion.' 'Section 40.37. Same--Requirements as to Serving Customers. All customers, under the provisions of the preceding section, shall be served from the parked vehicle from the curb side. No vendor shall serve or sell to any customer under fourteen years of age any product when the customer is approaching from the opposite side of the street, but the vendor shall deliver to the customer on the opposite side of the street any product desired so as to prevent any customer under fourteen years of age from crossing the street to make a purchase.' 'Section 30.85. Standing or Parking Close to Curb. No person shall stand or park a vehicle in a roadway other than parallel with the edge of the roadway headed in the direction of lawful traffic movement and with the right-hand wheels of the vehicle within six inches of the curb or edge of the roadway except as otherwise provided in this article; * * *.' The following acts of negligence were charged to French's and Honea, in addition to those charged to Williams. 'The defendant Alvie Honea was negligent throught the act of his daughter who was using said automobile as a family-purpose car in the following particulars, to wit: (1) In participating in a joint venture with the defendant Charles R. Williams in racing side by side at a speed in excess of seventy (70) miles per hour as set forth in this petition and in contributing to and being a part of said venture which was one of the proximate causes of the injuries sustained by your petitioner. (2) In damaging and injuring your petitioner as alleged in this petition.' 'The defendants French's Ice Cream Company and Charlie Bruce were negligent in the following particulars, to wit: (1) In dispensing ice cream products from the wrong side of said vehicle in violation of the valid and subsisting ordinances of the City of Atlanta heretofore set out in this petition, which was negligence per se; (2) In parking said vehicle out in said street a distance of at least...