Stanfield v. Johnson

• Decision Date: 26 February 1957
• Docket Number: No. 1,No. 36550,36550,1
• Citation: 98 S.E.2d 106,95 Ga.App. 349
• Parties: C. H. STANFIELD, Sr. v. C. B. JOHNSON, Sr., et al
• Court: Georgia Court of Appeals

Page 106

98 S.E.2d 106

95 Ga.App. 349

C. H. STANFIELD, Sr. v. C. B. JOHNSON, Sr., et al.

No. 36550.

Court of Appeals of Georgia, Division No. 1.

Feb. 26, 1957.

Rehearing Denied March 20, 1957.

Syllabus by the Court.

The court erred in sustaining the general demurrers of the defendants Johnson and Gulf Oil Corporation.

Charles H. Stanfield, Sr., brought an action against Charles Buford Johnson, Sr., Wilbur Rodgers, and Gulf Oil Corporation for the death of his daughter, Mary Belle Stanfield, who, according to the allegations of the petition, died as the result of the defendants' joint negligence. Johnson and Gulf Oil Corporation filed separate general demurrers to the petition which were sustained, and the plaintiff excepts to this judgment. It does not appear from the record that Rodgers filed any demurrers.

A. C. Felton, III, Montezuma, Fort & Fort, Hollis Fort, Americus, for plaintiff in error.

W. T. Roberts, Montezuma, Martin, Snow & Grant, Harris, Russell, Weaver & Watkins, Macon, W. F. Blanks, Montezuma, for defendants in error.

NICHOLS, Judge.

The plaintiff sought to recover for the death of his daughter who, according to the allegations of the petition, died as the result of injuries received in an automobile collision. It was alleged that the deceased left no husband or children surviving and that her mother predeceased her, that the automobile of the defendant Charles Buford Johnson, Sr., was being used by his son and that the truck of the defendant Wilbur Rodgers was being operated by his son, that both of these defendants were liable under the family car doctrine, and that the plaintiff's daughter was a guest in the automobile owned by the defendant Johnson at the time of the collision.

In addition to the above it was alleged that at about 11:30 p. m. on July 3, 1955 the defendant Johnson's automobile was parked without any lights at a point near where the paved portions of State Highways 26 and 49 intersect in Macon County, Georgia, that such automobile was not illuminated, that it was parked about 35 feet from each of the center lines of these two highways, that such automobile was not on the paved portion of these two highways but was on an improved portion of these two highways at a point generally used by the traveling public as a short cut and at a point where the vehicles traveling from one highway to the other come in conflict, that the vehicle was parked near some signs placed by the State Highway Department so that it was not visible for 200 feet as required by law, that near the signs placed by the State Highway Department the Gulf Oil Corporation had placed a sign on a steel pole, about 6 inches in diameter and 15 feet high, imbedded in the ground so that it was immovable, that the sign erected and maintained by the Gulf Oil Corporation was illegally erected and maintained on the highway and its erection and maintenance constituted a public nuisance and amounted to negligence per se, that in addition to being a short cut between the two highways the boundary line of the two rights-of-way formed the boundary of land used as a filling station and cafe, that the place where the Johnson automobile was parked was also used as an exit and entrance to a drive-in movie, and that the Johnson automobile was not parked at the above described place by necessity but because of the voluntary choice of the defendant Johnson's son. The petition then alleged that while Rodger's truck was being driven by his son at a rate of speed of 75 miles per hour it left the paved portion of State Highway 49 and traveled over the described area, that at such rate of speed the driver failed to have such vehicle under control so as to be able to avoid striking the Johnson automobile, that the Rodgers truck did strike the Johnson automobile under such circumstances, pushing the Johnson automobile until it struck the steel pipe erected and maintained by the Gulf Oil Corporation, and that when the Johnson automobile struck the steel pipe it threw the plaintiff's daughter out of the door of the Johnson automobile causing the injuries that resulted in her death.

The petition charged negligence against the defendant Johnson in that his son had violated various named Code sections prohibiting the parking of motor vehicles in the place and under the circumstances shown above. Rodgers was charged with negligence in operating the truck owned by his father in excess of the lawful speed and in operating such truck so that he did not have it under control so as to be able to avoid striking the Johnson automobile. Gulf Oil Corporation was charged with negligence in having erected and maintained its sign on the steel pipe on the right-of-way of the two highways.

The instant case is before this court on general demurrers interposed by two of the defendants and if the allegations of the petition, when taken as true, although construed most strongly against the plaintiff, are sufficient to support a finding for the plaintiff then the issue made should be...