McKinney v. Burke, s. 40243
| Decision Date | 17 October 1963 |
| Docket Number | 40245,No. 1,40244,Nos. 40243,s. 40243,1 |
| Citation | 108 Ga.App. 501,133 S.E.2d 383 |
| Parties | C. G. McKINNEY v. Jimmy BURKE, by next friend. E. M. McKINNEY v. Jimmy BURKE, by next friend. Jerry VARNADOE v. Jimmy BURKE, by next friend |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Whether the act of an invitee in riding on the outside body of a truck adjacent to the cab constitutes contributory negligence barring him from recovery is a jury question.
2. No matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable. Although the defendant owner of a truck was negligent in lending it to an inexperienced, incompetent, unlicensed driver, such negligence has no causal connection with the plaintiff's injury where the minor was not in fact operating the vehicle at the time the hurt was received.
3. Allegations that E. M. McKinney, Jr. was guilty of negligence in failing to warn the plaintiff that the operator was about to swerve the truck in which they were riding, and in permitting the operator to injure the plaintiff by suddenly swerving the truck, are insufficient to state a cause of action where it does not appear that the defendant was in any better position than the plaintiff to anticipate the negligent conduct of the driver.
4. In the absence of a special demurrer directed to the paragraph of the petition alleging negligence on the part of the driver, on the ground that such allegations are duplicitous, a cause of action is set out against Varnadoe based on gross as well as ordinary negligence.
The minor plaintiff, Jimmy Burke, suffered a brain concussion when he was thrown from a truck owned by the defendant C. G. McKinney, lent to his grandson, the defendant E. M. McKinney, Jr., and operated by the third defendant, Jerry Varnadoe. These companion cases represent appeals of each of the defendants from judgments of the Superior Court of Crisp County overruling their individual general demurrers to the petition.
It is alleged that McKinney and his grandson were both employed at a State park in Crisp County but were not members of the same household; that McKinney entrusted the pickup truck to his grandson for his pleasure and convenience and also as a means of transportation to and from the place of employment and that as occasion arose the truck was used interchangeably between them; that he also permitted his grandson to keep the truck at the latter's home during weekends without any limitation on his authority to use it for his own pleasure and convenience; that the grandson was an inexperienced, unskilled and unlicensed driver only 15 years of age, which facts were known to McKinney. On July 10, 1960, McKinney, Jr., invited the plaintiff to go riding with him. Varnadoe was at that time occupying the right front seat of the cab and another boy was sitting in the center of a pile of automobile tires in the bed of the truck. On observing this the plaintiff took a seat on the left side of the truck body adjacent to the cab, holding to the cab by one hand and the side body of the truck with the other hand. After McKinney, Jr. had driven for some miles he saw the lights of a vehicle approaching from the rear and became apprehensive that it might be a State Patrol car. Since he had no operator's license he asked Varnadoe to drive and the defendants exchanged places without stopping the vehicle. Varnadoe, after driving something over a mile, suddenly and unnecessarily swerved the truck violently to its right, as a result of which the plaintiff was thrown to the road and injured. The petition charges that McKinney was negligent in entrusting the vehicle to a person known to him to be incompetent, inexperienced, and an unlicensed driver only 15 years of age; in failing to anticipate that by this act plaintiff might be injured either by the minor or another negligent driver operating the vehicle at the latter's request, in permitting such minor to operate his truck on the highway, and in turning the truck over to him when he should have known the vehicle under these circumstances was a dangerous instrumentality. E. M. McKinney, Jr., sitting beside the driver and exercising control over the operation of the vehicle, was negligent in failing to warn the plaintiff that the driver was about to suddenly change course, and in permitting Varnadoe to operate the vehicle in a manner calculated to injure the plaintiff by suddenly swerving it to one side. Varnadoe was negligent and failed to exercise ordinary care for the plaintiff's safety in swerving the vehicle and hurling him from the truck without necessity and 'was negligent in swerving said vehicle to its right in a gross and reckless manner without regard for [his] safety.'
Jay, Garden & Jay, Clayton Jay, Jr., Fitzgerald, for C. G. McKinney. Mixon & Forrester, George M. Mixon, Cordele, for E. M. McKinney, Jr. Mallard & McMurray; William LeRoy McMurray, Jr., Cordele, for Jerry Varnadoe.
Wright & Reddick, George P. Wright, Cordele, for Jimmy Burke.
1. 'Reasonable minds might disagree as to whether the fender of an automobile is such an obvious place of danger under all circumstances that a person sitting thereon would be barred from recovery as a matter of law.' Lassiter v. Poss, 85 Ga.App. 785, 788, 70 S.E.2d 411, 414. 'Where it is alleged that the plaintiff, a 15-year-old boy, was riding on the left front fender of a car, and that the impact of the collision with the defendants' car threw the plaintiff to the pavement thereby injuring him, the petition set out a cause of action.' Hodges v. Pilgrim, 88 Ga.App. 256, 260, 76 S.E.2d 454, 457. To the same effect see Atlantic Ice & Coal Co., v. Folds, 47 Ga.App. 832, 171 S.E. 581; 44 A.L.R.2d 303. Whether the plaintiff, a minor, was in the exercise of ordinary care for his own safety under these circumstances is a question for the jury to decide rather than the court.
2. From the omission of the petition to allege that the minor defendant, McKinney, Jr., was a member of his granfather's household to whom the truck was furnished under the family purpose doctrine, it must be assumed that no such relationship existed. Absent an agency relationship, the express allegation that the truck was furnished for the pleasure and convenience of the minor defendant shows a mere lending or bailment under which the owner would not be liable for injuries resulting from the negligence of the bailee during his use of the vehicle for his own purposes, since imputed negligence must rest on an agency relationship. Graham v. Cleveland, 58 Ga.App. 810, 811, 200 S.E. 184; Rape v. Barker, 25 Ga.App. 362, 103 S.E. 171; Bell v. Washam, 82 Ga.App. 63, 60 S.E.2d 408; Johnson v. Webb-Crawford Co., 89 Ga.App. 524, 80 S.E.2d 63. The citations in Graham, supra, also stand for the proposition that this is true although the owner consents to the operation of the vehicle by the person whose negligence in fact causes the injury. The mere fact that the owner in lending the truck to his grandson put no restrictions on its use is not of itself sufficient to impose liability on the owner because of the act of the son in procuring another to drive in his stead: Johnson v. Brant, 93 Ga.App. 44, 46, 90 S.E.2d 587, 588. While an owner whose negligence in knowingly entrusting his automobile to an incompetent and reckless driver may become actionable because he thereby converts the vehicle into a dangerous instrumentality, Burks v. Green, 85 Ga.App. 327, 330, 69 S.E.2d 686, 'nevertheless the injurious conduct of the driver resulting from his incompetency is a necessary factor in the liability of the owner.' Id., 85 Ga.App. p. 331, 69 S.E.2d p. 689. This is so because, no matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable. Cain v. State, 55 Ga.App. 376, 381, 190 S.E. 371. The negligence of the owner in knowingly entrusting the vehicle to a reckless and incompetent driver must concur with negligence of the driver resulting from that recklessness and incompetency, or the negligent entrustment cannot be considered a part of the proximate cause of injury so as to render the owner liable. Krausnick v. Haegg Roofing Co., 236 Iowa 985, 20 N.W.2d 432, 163 A.L.R. 1413; Somerville v. Keeler, 165 Miss. 244, 145 So. 721; Saunders v. Prue, 235 Mo.App. 1245, 151 S.W.2d 478; Richardson v. Ervin, 174 Kan. 314, 255 P.2d 641; Winfrey v. Austin, 260 Ala. 439, 71 So.2d 15; 60 C.J.S. Motor Vehicles, § 431. See also Garver v. Smith, 90 Ga.App. 892, 896, 84 S.E.2d 693; Myrick v. Alexander, 101 Ga.App. 1, 5, 112 S.E.2d 697; Burks v. Green, supra, 85 Ga.App. p. 329, 69 S.E.2d pp. 687-688; Vaughn v. Butler, 103 Ga.App. 884, 887, 121 S.E.2d 72. In Mason v. Powell, 92 Ga.App. 496, 88 S.E.2d 734 where family purpose was shown as between the owner and her son, and where allegations of the petition showed incompetence on the part of the son due to intoxication, and incompetence on the part of the driver to whom the son had lent the vehicle due to her youth, lack of experience with automobiles, and failure to have a driver's license, it was held that a plaintiff injured by the incompetent driver could not recover against the owner of the vehicle in the absence of a showing that the owner had actual knowledge of the son's negligence in lending the automobile to the minor and by...
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