Wright v. Lail, 39136

• Decision Date: 10 January 1962
• Docket Number: No. 2,No. 39136,39136,2
• Parties: Joe WRIGHT v. Richard LAIL. Filed
• Court: Georgia Court of Appeals

Page 487

124 S.E.2d 487

105 Ga.App. 261

Joe WRIGHT v. Richard LAIL.

No. 39136.

Court of Appeals of Georgia, Division No. 2.

Filed Jan. 10, 1962.

Rehearing Denied Feb. 1, 1962.

Syllabus by the Court

1. The petition stated a cause of action, and the court erred in sustaining the defendant's general demurrer.

2. Allegations of inducement which are introductory to the substance of the complaint and which merely serve to show the history of the case and the surrounding

conditions and circumstances where the alleged injuries were sustained are not subject to demurrer on the ground that such allegations are irrelevant, immaterial, and conclusions of the pleader.

3. For reasons stated in the opinion in this case, the court erred in sustaining certain grounds of the defendant's special demurrer to the petition.

Joe Wright filed a suit for damages against Richard Lail. The petition, in substance, alleges that the plaintiff was visiting the home of the defendant; that the defendant asked the plaintiff to ride in his (defendant's) station wagon for the purpose of locating a rattle in it; that the plaintiff entered the station wagon on the right side, and the defendant drove it 'back and forth in his driveway' and asked the plaintiff if he could locate the rattle; that the station wagon was equipped with an automatic transmission; that after the defendant had driven the station wagon back and forth in the driveway several times they were unable to locate the rattle; that the plaintiff, at no time, had control over the acts or conduct of the defendant in the operation of the station wagon; that the defendant stopped the station wagon, and the plaintiff proceeded to open the right hand door thereof, turned to the right and had placed his feet on the ground attempting to get out of the station wagon; that as plaintiff proceeded to turn himself to the right while still sitting on the seat of the station wagon with his back turned to the defendant, and with his feet on the ground attempting to leave the station wagon, the defendant allowed his foot to slip off the brake pedal onto the gas pedal causing the station wagon to 'launch' forward; that the door frame of the right front door of the station wagon hit the plaintiff in the right side knocking him off balance and to the left; as the plaintiff was knocked to the left, the defendant suddenly jammed the brakes of the station wagon thereby causing the door to swing forward and then backward against the plaintiff knocking him backwards, turning him around and causing him to fall on the driveway on his left hip; that, at said time and place the defendant, Richard Lail, knew that the plaintiff was proceeding to leave the station wagon, and that there was nothing to prevent the defendant from seeing and observing the plaintiff leaving the right front seat of the station wagon.

The plaintiff's specifications of negligence are that the defendant was grossly negligent toward the plaintiff in the following respects: (a) In failing to keep said station wagon under proper control at all times, the same constituting gross negligence. (b) In failing to exercise due care for the safety of the plaintiff, which constitutes gross negligence. (c) In allowing his foot to slip off the brake, which constitutes gross negligence. (d) In allowing his foot to hit the gas pedal while the car was in gear as the plaintiff was attempting to remove himself from the car, which constitutes gross negligence. (e) In injuring and damaging the plaintiff as alleged herein, which constitutes gross negligence. (f) In failing to observe the plaintiff attempting to get out of the station wagon, which constitutes gross negligence.

The defendant filed general and special demurrers to the petition, which were sustained and the petition was dismissed. This ruling is assigned as error.

Vernon W. Duncan, Marietta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Earl J. Van Gerpen, Atlanta, for defendant in error.

FRANKUM, Judge.

1. 'Where * * * the petition in an action for damages set out a cause of action against the defendant for negligence under a statement of facts showing a duty on the part of the defendant to exercise ordinary care to avoid injuring the plaintiff, and a violation of that duty, the trial court did not err in overruling the general demurrers to the petition on the ground that the plaintiff had characterized the acts of the defendant as gross negligence but had failed to allege facts sufficient to constitute gross negligence. A different situation is presented when the facts alleged in the petition place on the defendant only the duty to exercise slight care.' Holland v. Boyette, 93 Ga.App. 497, 92 S.E.2d 222. To the same effect see Western Union Tel. Co. v. Harris, 6 Ga.App. 260, 64 S.E. 1123; Blanchard v. Ogletree, 41 Ga.App. 4, 152 S.E. 116; Fountain v. Tidwell, 92 Ga.App. 199, 88 S.E.2d 486; United States Fidelity &c. Co. v. Sanders, 94 Ga.App. 904, 96 S.E.2d 531; Morris v. Cochran, 98 Ga.App. 786, 106 S.E.2d 836.

In the instant case there was no special demurrer on the ground of duplicity. Accordingly, Flint Explosive Co. v. Edwards, 84 Ga.App. 376, 66 S.E.2d 368, is clearly distinguishable.

We are of the opinion that the plaintiff in the instant case alleged facts showing the measure of care required by the defendant to the plaintiff not to be slight care, but to be ordinary care. It is alleged that the defendant asked the plaintiff to ride in the station wagon for the purpose of locating a rattle in same. This allegation shows that the plaintiff rode in the vehicle not as a guest for his own pleasure and convenience, but he was in the station wagon for the sole benefit of the defendant. Accordingly, the plaintiff, as a passenger, was an invitee to whom the defendant owed the duty of exercising ordinary care to avoid injuring him. Holtsinger v. Scarbrough, 69 Ga.App. 117, 24 S.E.2d 869; Nash v. Reed, 81 Ga.App. 473, 59 S.E.2d 259; Perry v. Poss, 86 Ga.App. 169, 71 S.E.2d 283; Taylor v. Austin, 92 Ga.App. 104, 88 S.E.2d 190; Fowler v. Glover, Ga.App., 123 S.E.2d 903. Cf. Central Railroad v. Brinson, 70 Ga. 207(5a).

Being unable to find the cause of the rattle in the station wagon, the defendant brought it to a stop. The plaintiff opened the door of the station wagon on the right side and turned to get out. At this point of time the defendant 'allowed his foot to slip off of the brake pedal onto the gas pedal causing said * * * station wagon to launch forward', thereby knocking the plaintiff, who was attempting to leave the vehicle, onto the driveway causing injuries to his person. The defendant contends that these allegations, at best, show an 'accident', 'momentary inattention', or 'momentary loss of presence of mind', which are insufficient to show the defendant failed to exercise 'slight care', citing Tucker v. Andrews, 51 Ga.App. 841, 181 S.E. 673. But having concluded that the defendant was charged with the duty of exercising ordinary care under the facts alleged in the petition, it is only necessary to determine whether the petition alleged facts showing no more than an accident for which no one would be liable, or alleged facts to show negligent acts of the defendant which could be the proximate cause of the plaintiff's injury. The allegation that the defendant 'allowed his foot to slip off the brake pedal onto the gas pedal' imports conscious knowledge on the part of the defendant whereby he let his foot slide onto the accelerator (Colonial Stores, Inc. v. Scholz, 73 Ga.App. 268, 36...