Wilder v. Steel Prod.S Co

• Decision Date: 03 February 1938
• Docket Number: No. 26586.,26586.
• Citation: 57 Ga.App. 255,195 S.E. 226
• Parties: WILDER. v. STEEL PRODUCTS CO.
• Court: Georgia Court of Appeals

57 Ga.App. 255

195 S.E. 226

WILDER.

v.STEEL PRODUCTS CO.

No. 26586.

Court of Appeals of Georgia, Division No. 1.

Feb. 3, 1938.

Syllabus by the Court.

In this state, a gratuitous passenger riding in the automobile of the defendant cannot recover for injuries resulting proximately from the negligent operation of such automobile by a servant of the defendant, unless such negligence be gross. In such a case, where the petition does not expressly allege gross negligence, it cannot be held good as against general demurrer unless the facts pleaded demand the inference of gross neglect. Therefore, if when properly construed the petition shows that the deceased (for whose death the present action is brought) was a gratuitous passenger in the car of the defendant, since the petition did not expressly allege gross negligence, and the facts alleged do not demand the inference of gross negligence, the trial judge did not err in dismissing it on demurrer. If, however, under the allegations of the petition, the deceased was not a gratuitous passenger, but was a servant (and the allegations of the petition demand a holding that he was one or the other) of the defendant, at the time of the fatal accident, since it is alleged that his death was brought about by the negligent operation of the truck by another servant of the defendant, and since it affirmatively appears that both the deceased and such negligent servant were engaged in a common employment at such time, under the fellow-servant doctrine the petition set out no cause of action.

Error from City Court of Savannah; Alex R. MacDonell, Judge.

Action by Lucinda Wilder against the Steel Products Company to recover for the death of her husband who was run over by defendant's truck on which he had been riding. To review a judgment for defendant, plaintiff brings error.

Affirmed.

Ulmer & Dowell, of Savannah, for plaintiff in error.

Abrahams, Bouhan, Atkinson & Lawrence, of Savannah, for defendant in error.

GUERRY, Judge.

The petition of Lucinda Wilder alleged that the defendant company was engaged in furnishing and delivering material to be used in the construction of the plant of the Union Bag & Paper Company, of Savannah, Ga.; that the Merritt-Chapman Scott Company was the contractor engaged in erecting the plant; that it "was the uniform and unvaried custom of the defendant company to send only its driver with its truck delivering material and the driver of the truck would pick up employees of the contractor in sufficient number to unload the truck and carry them to the place where the material was to be unloaded, " and bring them back to the place they desired to go; that this custom was known to the defendant and was carried out at its direction for the purpose of saving it the expense of hiring extra hands to assist its drivers in unloading said material; that on May 23, 1936, Jack Wright, a driver for the defendant company, who was engaged in delivering material to the plant which was being erected, and after having unloaded the same, was preparing to leave the plant and return to the plant of the defendant; that he "told Will Wilder, petitioner's husband, to get on said truck at a point just to the rear of the cab thereof and on the left hand or driver's side of said truck for the purpose of transporting the said Will Wilder to a point where the Commissary of the Merritt-Chap-man and Scott Company was located"; "that it was customary and necessary for the trucks of said defendant to stop and put off the employees of the Merritt-Chap-man and Scott Company at the point where they were to be transported; that just beyond the point where petitioner's said husband * * * was to disembark from said truek there is a sharp turn or bend in the road which said truck was travelling; that said driver, * * * instead of stopping said truck and allowing petitioner's husband to dismount therefrom in safety, on the contrary, he well knowing the danger to which petitioner's said husband would be subjected, * * * speeded up said truck in making said sharp turn, which said speeding up and sharp turn of said truck swung petitioner's said husband around so that the trailer attached to said truck knocked him off said truck and ran over him." The negligence averred was as follows: "(a) In assigning petitioner's said husband to an unsafe and dangerous place upon said truck in which to ride. (b...