Lewis v. Harry White Ford, Inc.

• Decision Date: 28 June 1973
• Docket Number: No. 2,No. 48143,48143,2
• Citation: 199 S.E.2d 599,129 Ga.App. 318
• Parties: Katherine J. LEWIS v. HARRY WHITE FORD, INC., et al
• Court: Georgia Court of Appeals

Page 599

199 S.E.2d 599

129 Ga.App. 318

Katherine J. LEWIS v. HARRY WHITE FORD, INC., et al.

No. 48143.

Court of Appeals of Georgia, Division No. 2.

June 28, 1973.

Ross & Finch, Charles E. McCranie, Baxter H. Finch, Atlanta, for appellant.

Greene, Buckley, DeRieux & Jones, Hugh Robinson, Jr., Atlanta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

This is an appeal by plaintiff seeking to reverse a summary judgment rendered for defendant employer in a case brought by plaintiff for personal injuries against both employer, Harry White Ford, Inc., and employee, Jackson. This does not involve a respondeat superior situation as the collision between the automobile operated by plaintiff and that driven by Jackson occurred while Jackson was on a personal mission unconnected with his employment. Because Jackson was driving a 1966 Ford automobile owned by employer, plaintiff seeks to hold employer as a co-defendant upon two theories: (1) Negligent entrustment in that the employer should have known defendant Jackson was an incompetent, dangerous and negligent driver, and (2) that the employer furnished Jackson with an automobile which was mechanically defective and that employer knew or in the exercise of ordinary care should have known that it was dangerous to operate such vehicle with defective brakes. Defendant employer denied liability and its motion for summary judgment was sustained herein. Held:

1. The evidence in the record concerning the driver's alleged incompetency totally fails to support plaintiff's contentions as to that claim. Prior to employing Jackson the employer investigated 'his background, his references, his credit, his driver's record, etc.' Reports were received from the police and a credit bureau as well as checking with former employers. No adverse information was developed. Unknown to employer Jackson had been found guilty of criminal offenses. These involved larceny of an automobile, wife beating, and bastardy. None of these crimes has any relevancy concerning competency in driving an automobile. Nor would such convictions prevent one from holding a valid driver's license. Although employer acknowledges that if these matters had been learned during the investigation that such criminal background would have made Jackson ineligible for employment with that concern, such employment policy does not involve any question of recklessness or driving competency. See Saunders v. Vikers, 116 Ga.App. 733, 736, 158 S.E.2d 324; Brown v. Sheffield, 121 Ga.App. 383(2a), 173 S.E.2d 891. As to this theory of negligent entrustment the court below was correct.

2. A different situation confronts us in reviewing the evidence presented on the question of the employer's exercise of ordinary care as to the allegations concerning the condition of the vehicle. Jackson testified that the brakes did not perform correctly above certain speeds. He gave no estimate of his speed at the time of the incident. He further specified that the brake on one side pulled and then grabbed, that there was a noise in the brake drum on one side. Defendant's evidence sought to rebut this contention and also to show that the alleged defective condition of the brakes had no relevancy to the head-on collision which occurred when Jackson drove to the left of the center line to avoid another vehicle and that the brakes played no part in this.

Code Ann. § 68-1715(a, b, c) sets the standards for the brake equipment required, the performance ability of brakes and the maintnance of brakes. Concerning maintenance of brakes, it is stated that 'All brakes shall be maintained in good working order and shall be so adjusted as to operate as equally as practicable with respect to the wheels on opposite sides of the vehicle.' Considering Jackson's unrebutted testimony as to the performance of the brakes in view of this requirement, a jury question is raised as to whether the brakes were defective.

'The statutory duty to keep an automobile equipped with proper brakes is imposed on the owner, and the owner is liable for any injuries proximately caused by the defective condition of the brakes if he permits another person to operate it while it is in that condition, when he knows or through the exercise of ordinary diligence could and should have known of its defective condition. (Cits.) . . . And when an injury can be traced directly to a wrongful act, and but for such wrongful act it could not reasonably be supposed that the injury would have resulted, this essentially antecedent act may be said to be the 'proximate cause' of the injury. (Cits.)' Gregory v. Ross, 214 Ga. 306, 311; 104 S.E.2d 452, 456.

Other factual questions are presented by the record in seeking to determine if the employer defendant in the exercise of ordinary care should have known of the defect. Did the customary road-testing of the car when first placed on employer's used car lot within a period of less than one month reveal the supposed defect? After the repairs to the car should another road test have been made? These questions place this case in the category that "circumstance was shown which could have served to put the defendant upon notice or inquiry as to such a defect, or from which it could have been inferred that he might have discovered it by the exercise of ordinary care." Cruse v. Taylor, 89 Ga.App. 611, 618, 80 S.E.2d 704, 710, quoting from Mathis v. Mathis, 42 Ga.App. 1, 155 S.E. 88. Thus a possible jury question was presented which was not resolvable by the summary judgment on the record as it presently exists.

3. Additionally, a jury question exists concerning the contention that the brakes did not constitute the proximate cause. "By proximate cause is not meant the last act or cause, or the nearest act to the injury, but such act wanting in ordinary care as actively aided in producing the injury as a direct and existing cause. (Cit.) . . . 'A juridical cause need not be the sole cause.' . . . (Cit.)' Wright v. Southern R. Co., 62 Ga.App. 316, 319, 7 S.E.2d 793, 796.

"In order for a party to be liable as for negligence, it is 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. (Cits.)" Milton Bradley Co. of Ga. v. Cooper, 79 Ga.App. 302, 307, 53 S.E.2d 761, 765.

'We cannot say as a matter of law from the evidence in the present case that any one defendant was or was not negligent, or that any particular act, if negligence, was or was not a sole or concurring proximate cause of the injuries allegedly sustained. Whether there has been negligence and whether there was causal relation to alleged injuries are questions of fact for jury resolution, except when the circumstances are such that they will support but one result. Such was not the case here.' Stone's Independent Oil v. Bailey, 122 Ga.App. 294(1), 176 S.E.2d 613, 619. In accord, Southern R. Co. v. Lunsford, 57 Ga.App. 53, 194 S.E. 602. Jackson's testimony that the right brake grabbed, that the left brake did not work and that he turned the steering wheel as far as possible to the left to avoid the truck infers that the performance and non-performance of the brakes could reasonably have accounted for his attempt to correct by over-steering.

'It is basic that an inference can be drawn only from a fact and that whether a fact will authorize a particular inference is a matter of law . . . (The court must determine) 'whether the evidence reasonably establishes a given theory . . . There must be more than a 'scintilla' of circumstances to carry the case to the jury. (Cits.) More than a 'scintilla' of circumstances 'means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' (Cit.) . . . (A)n inference is legitimate deduction whereas conjecture is mere unregulated suspicion. If the evidence reasonably establishes the plaintiff's theory it must be submitted to the jury . . ." Layton v. Knight, 129 Ga.App. 113, 198 S.E.2d 915.

Defendant has not negated the supposed brake defect as one of the factors constituting proximate cause along with Jackson's over-steering and the speed of the car. Defendant employer had not shown as a matter of law an absence of negligende.

In summary judgment proceedings the burden is on the movant to show the lack of substantial factual issue. Holland v. Sanfax Corp., 106 Ga.App. 1, 4, 126 S.E.2d 442; International Brotherhood v. Newman, 116 Ga.App. 590, 592, 158 S.E.2d 298; Sanfrantello v. Sears, Roebuck & Co., 118 Ga.App. 205, 206, 163 S.E.2d 256. 'Where a party to a case, upon whom the burden of proof upon the trial of the case does not lie, makes a motion for summary judgment, all of the evidence adduced on said motion, including the testimony of the party opposing the motion, must be construed most strongly against the movant. (Cits.)' Burnette Ford, Inc. v. Hayes, 124 Ga.App. 65(1), 183 S.E.2d 78.

'We do not deem it inadvisable to state that our holding here is not to be construed as a holding of whether the evidence of the plaintiff on the trial of the case, if it be identical with that in the present case and be construed most strongly against him on the trial, would or would not demand a verdict against him. That question is not before this court at the present time.' Burnette Ford, Inc. v. Hayes, supra, p. 67, 183 S.E.2d p. 79.

Judgment reversed.

HALL, P.J., concurs.

EVANS, J., concurs specially.

EVANS, Judge (concurring specially).

Plaintiff received injuries and damages in an automobile mishap. He contended the mishap occurred as a result of negligence of Jackson, who was driving...