Moody v. Martin Motor Co
| Decision Date | 13 January 1948 |
| Docket Number | No. 31811,31811 |
| Citation | 46 S.E.2d 197 |
| Parties | MOODY . v. MARTIN MOTOR CO. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 14, 1948.
Syllabus by the Court
An independent contractor owes an original duty to the public not to endanger the lives and limbs of others by the negligent performance of a contract, when the consequences of such conduct may be foreseen.
Error from Superior Court, Liberty County; M. Price, Judge.
Action by H. G. Moody against Martin Motor Company for personal injuries allegedly caused by negligent failure of defendant to properly repair a truck. To review a judgment sustaining demurrers to the petition and dismissing the action, plaintiff brings error.
Judgment reversed.
H. G. Moody brought an action for damages against the Martin Motor Company in the Superior Court of Liberty County. The material allegations of the petition were: On and before July 15, 1946, the plaintiff was an employee of Liberty Ice and Water Company of Hinesville, and among the duties required of the plaintiff was that of delivering ice; the defendant operates a garage and repair shop for compensation and undertakes and agrees to repair automobiles and motor vehicles for its customers and thepublic generally; on July 12, 1946, and for a considerable period of time prior thereto one of the Ford trucks belonging to the Liberty Ice and Water Company was badly in need of repair in connection with the steering gear, the radiator, and the brakes and on the date first above-mentioned the truck was delivered by the employer of the plaintiff to the defendant with specific instructions to repair the steering gear, the radiator, and the brakes, and the defendant accepted the truck and agreed to make such repairs; at the time the truck was delivered to the defendant for repairs the steering gear was particularly defective in that the drag link had become separated from the steering arm, and had been temporarily connected by means of a piece of wire, which condition was called to the attention of the defendant at the time the truck was delivered to it for repairs, and which condition could easily have been discovered by the defendant in the exercise of ordinary care and diligence; on July 15, 1946, the defendant delivered the truck to the plaintiff\'s employer, then and there representing to the plaintiff\'s employer that the requested repairs had all been completed with the exception of a radiator core which would be installed later; the truck when delivered had not been repaired as represented by the defendant, but on the contrary neither the brakes nor the steering gear had been repaired and were in the same or substantially the same condition as when delivered to the defendant for repairs which fact was not apparent; the plaintiff, on the day the truck was delivered by the defendant, was instructed to load the truck with ice and deliver the ice at a point north of Midway on the Coastal Highway, which the plaintiff proceeded to do; on reaching a point two miles north of Midway the drag link became separated from the steering arm on the truck, causing the truck to swerve off the highway and plunge down an embankment, and throwing the plaintiff from the truck to the ground with great force and thereby injuring him severely; after the plaintiff discovered that the steering gear of the truck had become disconnected, rendering him unable to control the course of the truck, he applied the brakes to bring the vehicle to a stop but then discovered that the brakes had not been repaired as the application of the braking apparatus had no effect whatever in slowing the truck; that the plaintiff was in the exercise of all due care and diligence and could not have avoided his injuries by the exercise of such care and diligence; the proximate cause of his injuries was the negligence of the defendant in that (a) the defendant failed to repair the steering apparatus, (b) the defendant failed to repair the brakes on the truck, (c) after having failed to make those repairs, he represented to the plaintiff's employer that they had been made, and (d) the defendant failed to put the truck in a condition where it could be safely operated.
The defendant filed demurrers based on the grounds that the petition set forth no cause of action; that the allegations of the petition do not set out whether the plaintiff is proceeding on contract or in tort and the petition sounds in both; and, it appears from the facts alleged that different causes of action have been improperly united, to wit, one arising ex contractu because of the defendant's failure to make certain repairs on a motor vehicle belonging to the plaintiff's employer, and one arising ex delicto. The court sustained the demurrers and dismissed the action, and the plaintiff excepted to that judgment.
Dan S. Cowart and C. L. Cowart, both of Glennville, for plaintiff in error.
R. L. Dawson, of Ludowici, and Hamilton Douglas, of Atlanta, for defendant in error.
Code, § 105-106 provides: "No privity is necessary to support an action for a tort; but if the tort results from the violation of a duty, itself the consequence of a contract, the right of action is confined to the parties and privies to that contract, except in cases where the party would have had a right of action for the injury done, independently of the contract." This is a codification of the common law. "It is the orthodox and traditional general rule that a manufacturer or packer of a defectivearticle is not liable for injuries to the person or property of an ultimate consumer who has purchased from a middleman, unless the article was inherently dangerous to life or property, —at least where the wrongful act or acts were not known at the time, —upon the theory that there is no contractual relation between the parties." 140 A.L.R. note II, p. 192. Many so-called exceptions have been made to the rule stated in the code section above. See annotation in 140...
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