Young v. Koger, 36286
| Citation | 94 Ga.App. 524,95 S.E.2d 385 |
| Decision Date | 02 November 1956 |
| Docket Number | No. 36286,No. 1,36286,1 |
| Parties | Willa YOUNG v. Guy KOGER et al |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
The trial court did not err in sustaining the general demurrer filed by the defendant Koger, and in dismissing the action as to both defendants.
Miss Willa Young brought an action against Guy Koger, Jabe Alfred Truitt, and Miss Irene Young in which she sought to recover for injuries sustained by her in an automobile collision on or about July 27, 1954, on U. S. Highway 78 between Thomson, Georgia, and Washington, Georgia, while riding in an automobile being driven by Miss Egrus Young and owned by the defendant, Miss Irene Young. Previously the plaintiff brought an action against the driver of the automobile in which she was riding and other defendants shown above except Miss Irene Young, the owner of the automobile. In the previous action the defendant driver's general demurrer was sustained and the general demurrers of the other defendants were sustained inasmuch as the driver defendant was the only resident of the county wherein the action was filed and when the resident defendant's general demurrer was sustained the court's jurisdiction over the other defendants was lost. For the opinion of this court in that case see, Young v. Truitt, 93 Ga.App. 143, 91 S.E.2d 115.
In the present case, after the petition was filed the plaintiff, by amendment, struck Jabe Alfred Truitt as a party defendant and charged the defendant Koger with the negligence charged against Truitt for knowingly furnishing Truitt (who Koger knew or should have known was incompetent to drive a truck on the public highways of this State), the truck being driven by him and which was involved in the collision with the automobile in which the plaintiff was riding.
The allegations of the petition with reference to the collision and its cause were substantially as follows: That the plaintiff was riding in an automobile being driven by Miss Egrus Young at the request of and for the benefit of Miss Egrus Young, that the plaintiff had no rights of ownership in the automobile nor did she have any right to direct or assist in the operation of the automobile at the time of the collision complained of; that Miss Egrus Young was making the trip at the direction of Miss Irene Young for the benefit of Miss Irene Young and Miss Egrus Young, that the automobile being driven by Miss Egrus Young was being driven north on its own right hand side of the highway at a speed of approximately 35 miles per hour; that Miss Egrus Young, the driver of the automobile in which the plaintiff was riding, saw through the rear-vision mirror a reflection of the truck being driven by Truitt approaching from the rear and rapidly overtaking the automobile being driven by her while it was traveling in the same direction and while such truck was traveling at the rapid and illegal rate of speed of approximately 65 miles per hour; that, as the truck continued to gain on the automobile being driven by Miss Egrus Young without slowing down its speed, she realized that unless she increased her speed the truck would collide with the car being driven by her; that when the truck was approximately 10 yards from the automobile the truck and the automobile continued to travel approximately 100 yards while maintaining the distance of approximately 10 yards between them; that the driver of the automobile attempted to increase the speed of the automobile by depressing the accelerator of the automobile; that the accelerator would not respond to pressure and the driver exerted more pressure upon the accelerator, and, in so doing, her foot slipped off of the accelerator and onto the brake pedal slowing the speed of the automobile from 35 miles per hour to 10 miles per hour; that the driver of the truck, when within 10 yards of the automobile, realized that the truck was going to collide with the automobile, and he turned the truck sharply to the left in an effort to avoid striking the rear of the automobile, but, because of the high speed at which he was driving and the sudden slowing down of the automobile, he was unable to avoid striking the automobile and did strike the automobile in which the plaintiff was riding causing her alleged injuries; that the defendant, Miss Irene Young, the owner of the automobile knew of the defective condition of the accelerator on the automobile owned by her and involved in the collision; that she knew that it would hang and knew that the driver, Miss Egrus Young, did not know of this defect; that she knew that the plaintiff did not know of this defect; that she knew that the driver, Miss Egrus Young, would drive the automobile on the day of the collision and that the plaintiff would be riding in the automobile at such time.
The plaintiff charges the defendant, Miss Irene Young, with negligence in furnishing the automobile to Miss Egrus Young with the alleged latent defect, in not warning her or the plaintiff of such defect, and in furnishing such automobile in its defective condition knowing that the driver or other occupant could not discover such defect in the exercise of ordinary care. The petition also charges the defendant Koger with negligence in furnishing the truck involved in the collision to Truitt and employing and retaining Truitt in the employment of Koger's principal to drive a truck knowing, or having an opportunity to know, that Truitt did not have the ability and competency to operate the truck on the highways of this State.
The action was brought in the Superior Court of McDuffie County, Georgia, McDuffie County being alleged as the residence of the defendant, Miss Irene Young. The petition alleged that the defendant Koger was a resident of Wilkes County, Georgia. Koger filed general and special demurrers, ground one of which alleged that the petition failed to set forth a cause of action against him. The trial judge, after hearing argument on the demurrers, entered a judgment dismissing the petition as to both defendants in which he stated that the petition failed to set forth...
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