Nash v. Reed

• Court: Georgia Court of Appeals
• Writing for the Court: SUTTON
• Citation: Nash v. Reed, 81 Ga.App. 473, 59 S.E.2d 259 (Ga. App. 1950)
• Decision Date: 28 April 1950
• Docket Number: No. 1,No. 32965,32965,1
• Parties: NASH v. REED

Page 259

59 S.E.2d 259

81 Ga.App. 473

NASH v. REED.

No. 32965.

Court of Appeals of Georgia, Division No. 1.

April 28, 1950.

Syllabus by the Court.

1. An invited guest in or upon an automobile, to whom the owner or operator thereof owes the duty of exercising slight care for his safety, is one who is riding in or upon the automobile by invitation of the owner or operator solely for the guest's benefit, and not for the purpose of conferring any benefit upon his host.

2. An invitee in or upon an automobile, to whom the owner or operator thereof owes the duty of exercising ordinary care for his safety, is one whose presence in or upon the automobile is by invitation of the owner or operator for the purpose of conferring some substantial benefit upon his host, that is, something more than merely affording the host the pleasure of the guest's company.

3. Where the owner of an automobile, or his agent acting within the scope of his authority, surrenders the possession, authority over, and control of the automobile to another, for purposes of mutual benefit, and where it is intended that the possession, authority over, and control of the automobile by such person will be surrendered to the owner or his agent upon the accomplishment of the intended use, a bailment for mutual benefit exists between the owner or agent, as bailor, and the other party, as bailee, and the bailor owes the bailee a duty of exercising ordinary care in regard to furnishing a vehicle suitable and safe for its intended use.

4. Under the alleged facts shown by each count of the petition in the present case the plaintiff was driving the automobile for her own benefit and for the benefit of the defendant, who was the owner, at his invitation, through his wife as his agent, and occupied either the status of an invitee or a bailee under a bailment for mutual benefit, as distinguished from an invited guest, and whether she was an invitee or bailee depends upon whether there was a surrender of possession, authority over, and control of the automobile, but in either event the duty of the defendant to her as to the condition of the automobile was that of exercising ordinary care.

5. All issues of negligence, including any negligence on the part of the plaintiff, and the issue of proximate cause, are jury questions. Each count of the petition, showing that the plaintiff's injuries were sustained on account of the defective brakes on the defendant's automobile which she was driving, sets forth a cause of action based on ordinary negligence; and the trial court did not err in overruling the defendant's general demurrers.

Dunway, Riley & Howard, Atlanta, James M. Embry, Atlanta, for plaintiff in error.

Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, A. G. Cleveland, Jr., Atlanta, for defendant in error.

SUTTON, Chief Judge.

Mrs. Ruth A. Reed filed her petition in two counts in Fulton Superior Court against W. M. Nash, seeking to recover $5000 for personal injuries sustained when the brakes of the defendant's automobile which she was driving failed to function.

Except as to the allegations of knowledge of the condition and the degree of negligence each count is identical in substance, and the following is alleged: The parties reside in Fulton County. On April 1, 1949, the defendant owned a certain Dodge automobile, and it was provided for the comfort and convenience of his family, including use by his wife, Mrs. Penny Nash. The plaintiff and her husband, Charles E. Reed, were friends and neighbors of the defendant and his wife. Mrs. Nash did not know how to drive an automobile, and for some time prior to the aforesaid date it had been the custom and practice of the plaintiff, with the permission and at the request of the defendant and his wife, to drive the automobile to the grocery store on Friday morning of each week so that the plaintiff and the defendant's wife could do their weekly grocery shopping. On such occasions the defendant's wife would give the plaintiff the keys to the defendant's automobile, and the plaintiff would drive, the defendant's wife acting in this manner with the consent of the defendant, and as his agent. On the morning of the aforesaid date, as was her custom on each Friday morning, the defendant's wife requested the plaintiff to drive the defendant's automobile and to take the defendant's wife to the grocery store for the purpose of doing her weekly shopping. On this date the foot and hand brakes on the defendant's automobile were in such a defective condition that they would not stop the automobile, and were not useful as brakes whatsoever. The defendant and his wife knew (according to the allegations of count one) or should have known in the exercise of ordinary care (according to the allegations of count two) that the condition of the brakes on the defendant's automobile made the operation of the automobile a dangerous proceeding and would expose the plaintiff to an unreasonable risk in driving it. On said occasion the plaintiff received the keys to the automobile, took her place under the steering wheel, with the defendant's wife on the front seat on her right, started the engine, and proceeded to back the automobile down the defendant's driveway, which slopes downward to Hillpine Drive. At the bottom of the driveway the plaintiff applied the foot brakes, but the pedal went to the floor, and the progress of the automobile was not checked. As the automobile proceeded across Hillpine Drive the plaintiff applied the emergency brake, but it did not work and failed to check the speed of the...