Willis v. Hill, 42881

• Decision Date: 10 October 1967
• Docket Number: 2,3,No. 42881,Nos. 1,42881,s. 1
• Citation: 159 S.E.2d 145,116 Ga.App. 848
• Parties: Benjamin WILLIS et al. v. Lucy R. HILL
• Court: Georgia Court of Appeals

Page 145

159 S.E.2d 145

116 Ga.App. 848

Benjamin WILLIS et al. v. Lucy R. HILL.

No. 42881.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 10, 1967.

Rehearing Denied Dec. 18, 1967.

Certiorari Granted Feb. 13, 1968.

Syllabus by the Court

1. The motions to dismiss the appeal and 'to affirm as to questions raised in the motion for new trial' are without merit.

2. There was no error in overruling the general demurrer to plaintiff's petition.

3, 4. Enumerations of error 3, 4, and 5, complaining of the overruling of certain of the special demurrers, are without merit.

5. (a) Where the plaintiff, in one count, seeks to recover on both the theories of respondeat superior and negligent entrustment a demurrer on the ground of duplicity is good and should have been sustained.

(b) Where a plaintiff, in attempting to recover from a driver and his employer damages arising out of an automobile collision allegedly caused by the negligence of the driver, seeks to impose liability upon the employer under both the doctrine of respondeat superior and the theory of negligent entrustment of a motor vehicle to a known incompetent driver, and the employer admits in judicio its liability under respondeat superior for the negligence, if any, of the employee-driver on the occasion in question, defendants are entitled to have the negligent entrustment theory, and allegations and evidence in support of it, such as the driving record of the employee, his general character for carelessness or recklessness in driving, and particular instances of negligence on other occasions, removed and excluded from the case.

6. Income tax records of a decedent for the years just prior to his death, whether made separately or jointly with his widow, are neither irrelevant nor privileged when his widow sues for his wrongful death, and these records are subject either to discovery procedure or to a notice to produce for use as evidence at the instance of the defendant.

7-12. Enumerations of error 30 through 33, 151 through 153, and 164 through 172 are either expressly abandoned, deemed abandoned, or are otherwise not considered for reasons stated in the opinion.

Lucy R. Hill brought suit against Benjamin Willis and Southern Poultry, Inc., seeking to recover damages for the wrongful death of her husband who was killed when the pick-up truck he was driving collided with Southern's tractor-trailer truck while being operated by its employee, Willis.

The petition, as twice amended, alleged that on November 20, 1964, at approximately 3 p.m., plaintiff's husband was driving his Chevrolet pick-up truck in an easterly direction on Vanna Road in Hart County approaching its intersection with the Bowman-Goldmine Road. At the same time Willis was driving Southern's truck in a southerly direction on the Bowman-Goldmine Road approaching the same intersection. Both roads were public, paved, county roads approximately 20 feet in width with shoulders approximately 5 feet wide on each side. Plaintiff alleged that her husband stopped at the intersection and that 'after ascertaining that no traffic apparently was approaching on the Bowman-Goldmine Road, then proceeded into the intersection at a speed of approximately 5 miles per hour, when he was suddenly and without warning struck by defendant Southern's truck being driven by defendant Willis.' The Bowman-Goldmine Road, which Willis had traversed, was level, straight and of unobstructed vision for a distance of approximately 500 feet just prior to the point of impact, which was in the intersection approximately 5 feet across the center line of the Bowman-Goldmine Road in the north lane of travel; the collision occurring right front of the tractor-truck to left front of the pick-up.

It was alleged that the proximate cause of the collision and death of plaintiff's husband was the negligence of Southern's servant and agent in operating the truck at an excessive speed, driving across the center line, failing to keep a proper lookout, failing to yield the right of way to deceased's vehicle which was already in the intersection, and failing to turn the tractor-truck to the right so as to avoid colliding with deceased's vehicle. Liability was sought to be imposed upon Southern under the doctrine of respondeat superior, it being alleged that at the time of the collision Willis was its servant and agent, acting within the scope and in the performance of his duties.

The case thus proceeded to trial on this theory and resulted in a mistrial. Thereafter plaintiff amended her petition a third time by adding, though not in a separate count, paragraphs 19A and 20A alleging that 'Willis was an incompetent driver given to reckless operation of motor vehicles at speeds in excess of lawful limits, which facts were known to defendant, Southern Poultry, Inc., * * *' and that the proximate cause of the collision and death was, as to Willis, his negligence as previously set out, and as to Southern, its negligence 'in knowingly employing a reckless servant and permitting him to have possession of a tractor trailer truck knowing said servant to be an incompetent driver given to reckless operation of motor vehicles at speeds in excess of lawful limits.' Demurrers and objections to the amendment and to the petition as amended were overruled. The case then proceeded to another trial on the theory that Southern was liable under the doctrine of respondeat superior for the negligence charged against Willis and in addition was liable for its own negligence in knowingly entrusting its truck to an incompetent driver who, because of his incompetency, negligently caused the collision. Evidence was admitted over objection as to Willis' prior driving record purporting to show his general character for carelessness and recklessness in driving and instances of negligence on other occasions, and the second trial resulted in a general verdict and judgment for plaintiff against both defendants. Defendants appeal, making 172 enumerations of error.

Erwin, Birchmore & Epting, Nickolas P. Chilivis, Athens, for appellants.

Heard & Leverett, E. Freeman Leverett, Elberton, for appellee.

EBERHARDT, Judge.

This case was tried and all rulings were made prior to the effective date of the Civil Practice Act; consequently its provisions have no application on appeal. Abercrombie v. Ledbetter-Johnson Co., 116 Ga.App. 376, 157 S.E.2d 493. Because of provisions of the Act itself, e.g., § 86, the cases of Fulton County v. Spratlin, 210 Ga. 447(2), 80 S.E.2d 780, City of Valdosta v. Singleton, 197 Ga. 194, 208, 28 S.E.2d 759, and others similar, do not require a different result.

1. The motions to dismiss the appeal and 'to affirm as to questions raised in motion for new trial' are without merit and are denied.

2. While this case is similar to Hillhouse v. C. W. Matthews Contracting Co., 112 Ga.App. 73, 143 S.E.2d 686, and the petition presents a very close question of whether plaintiff's decedent exercised ordinary care for his own safety to avoid the hazard created by the speed and proximity to the intersection of defendants' tractor-truck after such hazard became, or in the exercise of ordinary care should have become, apparent to him, in view of the allegation that defendants' truck was over the center line of the highway as it approached and came into the intersection, we are unable to hold that the answer to this question is so palpably clear, plain and indisputable that it should be announced on general demurrer. Accordingly it was not error to overrule the general demurrer. See Yandle v. Alexander, 116 Ga.App. 165, 156 S.E.2d 504.

3. The special demurrer to, and motion to strike, the specification of negligence contained in Paragraph 20(B)(h) on the grounds that it is a conclusion, in that Paragraph 12 contradicts it, was properly overruled. Assuming for the purpose of argument that the demurrer itself is not subject to the criticism that it asks for improper relief from the defects complained of (see Hughes v. Jackson, 109 Ga.App. 804, 137 S.E.2d 487), we do not find any inconsistency in or contradiction between the two paragraphs. Enumeration of error No. 3 is without merit.

4. Paragraph 20(B)(i), specifying that defendant Willis was negligent 'In failing to turn said tractor-truck to the right so as to avoid colliding with deceased's vehicle,' was demurred to on the ground that this allegation was a conclusion and on the ground that no facts were alleged showing a duty on the part of defendant to turn the truck to the right under the circumstances alleged in the petition.

These demurrers are without merit. It is positively alleged in Paragraph 12(a) that there was a width of at least 12 feet to the right of plaintiff's decedent in which the tractor-truck could have passed without striking the pickup truck. In addition, it is alleged that as Willis approached the intersection, driving south on the Bowman-Goldmine Road, the tractor-truck was across the center line in violation of Code Ann. §§ 68-1633 and 68-1637, the impact occurring at a point approximately 5 feet across the center line of the Bowman-Goldmine Road in the northbound lane. Under these allegations the specification of negligence is not subject to the criticisms urged as a matter of pleading. Enumerations of error Numbers 4 and 5 are without merit.

5(a) Respondeat superior and negligent entrustment present separate theories of establishing a liability link from the negligence of the driver to the employer-entrustor since the first theory proceeds on the basis of imputed negligence or vicarious responsibility, whereas the second is brought under the negligence-proximate cause rubric. Accordingly the duplicity demurrer was good, and the two theories should have been pleaded in separate counts. Cf. Buffington v. Atlanta B. & C.R. Co., 47 Ga.App. 85, 88, 169 S.E. 756; Southern Ry. Co. v. McCrary, 55 Ga.App. 406(2), 190 S.E. 195; Paschal v. Hardwick, 68 Ga.App. 571(1), 23...