Saunders v. Vikers, s. 43177-43179

• Decision Date: 27 November 1967
• Docket Number: No. 3,Nos. 43177-43179,s. 43177-43179,3
• Citation: 158 S.E.2d 324,116 Ga.App. 733
• Parties: T. E. SAUNDERS et al. v. Dora L. VIKERS. T. E. SAUNDERS et al. v. J. D. VIKERS, by Next Friend. T. E. SAUNDERS et al. v. J. D. VIKERS
• Court: Georgia Court of Appeals

Page 324

158 S.E.2d 324

116 Ga.App. 733

T. E. SAUNDERS et al. v. Dora L. VIKERS.

T. E. SAUNDERS et al. v. J. D. VIKERS, by Next Friend.

T. E. SAUNDERS et al. v. J. D. VIKERS.

Nos. 43177-43179.

Court of Appeals of Georgia, Division No. 3.

Nov. 27, 1967.

Conyers, Fendig, Dickey & Harris, J. Thomas Whelchel, Brunswick, for appellants.

J. S. Hutto, Brunswick, for appellees.

Syllabus Opinion by the Court

JORDAN, Presiding Judge.

In these three cases the occupants of one passenger automobile are suing the driver and the owner of another for personal injuries and property damage sustained as the result of a collision at a street intersection in Brunswick, Ga., on March 19, 1966. The plaintiffs allege that the owner lent his automobile to the driver, knowing that the driver was an incompetent and reckless driver, that the driver's negligence is imputable to the owner, and that the driver was negligent in failing to stop for a red light, driving at an excessive speed, and driving in a reckless manner in violation of a city ordinance. Their petitions show an arrest record of the driver in Brunswick on four dates and five charges in 1964 and 1965, for being drunk in a motor vehicle, drunk on the streets and reckless driving, drunk in a motor vehicle, and drunk on the streets. In a deposition the owner admits lending his automobile to the driver and that he knew the driver 'got a ticket one time in town for reckless driving.' He thought 'he squealed tires, or something.' The owner was not in the automobile when the collision occurred. The driver in his deposition admits pleas of guilty on three occasions for traffic offenses, all involving driving under the influence and including one incident 'for squealing my tires.' He testified that the owner knew about 'the time that my tires squealed.' The plaintiffs' affidavits reiterate their allegations that the owner lent his automobile to the driver knowing that he was an incompetent and reckless driver and with knowledge of his arrest records. The owner moved for summary judgment, and he and the driver appeal from the overruling of the motion on August 30, 1967. Held:

1. Although the driver defendant is named as an appellant the rulings on the motions for summary judgment apply to the other defendant, and no issue of liability of the driver is before this court for decision except as it affects the liability of the owner. See Scarborough v. Martha White Mills, 115 Ga.App. 737, 155 S.E.2d 818.

2. To entitle the defendant owner of the automobile to a summary judgment, the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling the plaintiff to recovery under every theory fairly drawn from the pleadings and the evidence. Scales v. Peevy, 103 Ga.App. 42, 46, 118 S.E.2d 193; Calhoun v. Eaves, 114 Ga.App. 756, 759, 152 S.E.2d 805.

3. Unlike the rule of strict construction against the pleader on demurrer (as to rulings antedating the effective date of the new Civil Practice Act) the party opposing a motion for summary judgment is entitled to a liberal construction in his favor of the pleadings and evidence. Sanders v. Alpha Gamma Alumni Chapter of the Delta Sigma Phi Fraternity, 106 Ga.App. 137, 140, 126 S.E.2d 545; McCarty v. National Life & Accident Insurance Company, 107 Ga.App. 178, 179, 129 S.E.2d 408; Malcom v. Malcolm, 112 Ga.App. 151, 154, 144 S.E.2d 188; Undercofler v. Grantham Transfer Company, Inc., 114 Ga.App. 868, 870, 152 S.E.2d 900; Lucas v. Mixon, 116 Ga.App. 146, 149, 156 S.E.2d 375.

4. It is manifestly clear from the pleadings and evidence in these cases that the transaction between the owner defendant and the driver defendant is that of a bailment which does not create any relationship of principal and agent or master and servant for application of the doctrine of respondeat superior so as to impute the alleged negligence of the driver to the owner. Code § 12-101, 105-108, 105-205; Harris v. Whitehall Chevrolet Company, 55 Ga.App. 130(1), 189 S.E. 392; McDaniel v. Jones, 58 Ga.App. 495, 199 S.E. 233; Graham v. Cleveland, 58 Ga.App. 810, 200 S.E. 184; Thornton v. Stewart, 104 Ga.App. 6(2), 120 S.E.2d 899; Cleckler v. Williams, 104 Ga.App. 72, 121 S.E.2d 44; Hines v. Bell, 104 Ga.App. 76(1), 120 S.E.2d 892; McKinney v. Burke, 108 Ga.App. 501, 504, 133 S.E.2d 383. Accordingly, the plaintiffs are not entitled to recover from the defendant owner of the automobile by application of the doctrine of respondeat superior.

5. This leaves for consideration the theory of negligent entrustment, whereby liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness. NuGrape Bottling Company v. Knott, 47 Ga.App. 539, 171 S.E. 151; Burks v. Green, 85 Ga.App. 327, 69 S.E.2d 686; Gay v. Healan, 88 Ga.App. 533(4), 77 S.E.2d 47; Vaughn v. Butler, 103 Ga.App. 884, 887(2), 121 S.E.2d 72; McKinney v. Burke, supra; Roebuck v. Payne, 109 Ga.App. 525(2, 3), 136 S.E.2d 399.

6. In the argument in the brief counsel challenges the sufficiency of the allegations of the petition to show that the driver was an incompetent and habitually reckless driver, pointing out that of the five alleged offenses only one deals directly with the operation of a motor vehicle, and that in any event there appears to be no connection between the charges for drunkenness and the operation of a motor vehicle. These offenses...