McKinney v. Burke , 108 Ga. App. 501 ( 1963 )

Russell, Judge.

“Reasonable minds might disagree as to whether the fender of an automobile is such an obvious place of danger under all circumstances that a person sitting thereon would be barred from recovery as a matter of law.” Lassiter v. Poss, 85 Ga. App. 785, 788 (70 SE2d 411). “Where it is alleged that the plaintiff, a 15-year-old boy, was riding on the left front fender of a car, and that the impact of the collision with the defendants’ car threw the plaintiff to the pavement thereby injuring him, the petition set out a cause of action.” Hodges v. Pilgrim, 88 Ga. App. 256, 260 (76 SE2d 454). To the same effect see Atlantic Ice &c. Co. v. Folds, 47 Ga. App. 832 (171 SE 581); 44 ALR2d 303. Whether the plaintiff, a minor, was in the exercise of ordinary care for his own safety under these circumstances is a question for the jury to decide rather than the court.

From the omission of the petition to allege that the minor defendant, McKinney, Jr., was a member of his grandfather’s household to whom the truck was furnished under the family purpose doctrine, it must be assumed that no such relationship existed. Absent an agency relationship, the express allegation that the truck was furnished for the pleasure and convenience of the minor defendant shows a mere lending or bailment under which the owner would not be liable for injuries resulting from the negligence of the bailee during his use of the vehicle for his own purposes, since imputed negligence must rest on an agency relationship. Graham v. Cleveland, 58 Ga. App. 810, 811 (200 SE 184); Rape v. Barker, 25 Ga. App. 362 (103 SE 171); Bell v. Washam, 82 Ga. App. 63 (60 SE2d 408); Johnson v. Webb-Crawford Co., 89 Ga. App. 524 (80 SE2d 63). The citations in Graham, supra, also> stand for the proposition that this is true although the owner consents to the operation of the vehicle by the person whose negligence in fact causes the injury. The mere fact that the owner in lending the truck to his grandson put no restrictions on its use is not of itself sufficient to impose liability on the owner because of the act of the grandson in procuring another to drive in his stead: “. . . one who merely lends an automobile to another for purposes of the latter is not liable for negligence in the operation’of the automobile except under special circumstances, such as knowledge that he is turning the car over to a reckless and incompetent driver, or that the automobile has some mechanical defect. Even in such cases, liability is predicated on a negligent act of the owner in turning the car over to another under such circumstances, not on respondeat superior. Burks v. Green, 85 Ga. App. 327 (69 SE2d 686); Gay v. Healan, 88 Ga. App. 533 (77 SE2d 47).” Johnson v. Brant, 93 Ga. App. 44, 46 (90 SE2d 587). While 'an owner whose negligence in knowingly entrusting his automobile to an incompetent and reckless driver may become actionable because he thereby converts the vehicle into a dangerous instrumentality, Burks v. Green, 85 Ga. App. 327, supra, “nevertheless, the injurious conduct of the driver resulting from his incompetency is a necessary factor in the liability of the owner.” Id., p. 331. This is so because, no matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable. Cain v. State, 55 Ga. App. 376, 381 (190 SE 371). The negligence of the owner in knowingly entrusting the vehicle to a reckless and incompetent driver must concur with negligence of the driver resulting from that recklessness and incompetency, or the negligent entrustment cannot be considered a part of the proximate cause of injury so as to render the owner liable. Krausnick v. Haegg Roofing Co., 236 Iowa 985 (20 NW2d 432); Somerville v. Keeler, 165 Miss. 244 (145 S 721); Saunders v. Prue, 235 Mo. App. 1245 (151 SW2d 478); Richardson v. Erwin, 174 Kan. 314 (255 P2d 641); Winfrey v. Austin, 260 Ala. 439 (71 S2d 15); 60 CJS 1057, Motor Vehicles, § 431. See also Garver v. Smith, 90 Ga. App. 892, 896 (84 SE2d 693); Myrick v. Alexander, 101 Ga. App. 1, 5 (112 SE2d 697); Burks v. Green, supra, p. 329; Vaughn v. Butler, 103 Ga. App. 884, 887 (121 SE2d 72). In Mason v. Powell, 92 Ga. App. 496 (88 SE2d 734), where family purpose was shown as between the owner and her son, and where allegations of the petition showed incompetence on the part of the son due to intoxication, and incompetence on the part of the driver to whom the son had lent the vehicle due to her youth, lack of experience with automobiles, and failure to have a driver’s license, it was held that a plaintiff injured by the incompetent driver could not recover against the owner of the vehicle in the absence of a showing that the owner had actual knowledge of the son’s negligence in lending the automobile to the minor and by failure to object, or by consent, ratified the act. The opposite situation exists in Vaughn v. Butler, supra, where it appeared that the lending by the owner’s nephew to an incompetent driver was actually known to the owner, and that by her failure to protest she ratified and acquiesced in the negligent entrustment.

No cause of action is set out against C. G. McKinney. The trial court erred in overruling the general demurrer in Case No. 40243.

The only acts of negligence alleged against E. M. McKinney, Jr., the grandson, are that while sitting beside the driver and exercising control over the operation of the truck he was negligent in failing to warn the plaintiff that the driver was about to suddenly change the course of the vehicle and cause him to be pitched out, and that he was negligent in permitting the driver to so operate the vehicle as to injure the plaintiff by suddenly swerving it to one side. Whatever the plaintiff means by “exercising control,” he does not mean physical control, because McKinney,, Jr. had ceased driving, asked Vamadoe to drive for him, and was sitting in the right front seat of the vehicle. The petition alleges no facts which would have put McKinney, Jr. on notice that the driver was about to “suddenly swerve” the track without any warning, and of course McKinney could not be guilty of a failure to warn the plaintiff of Varnadoe’s intention of driving in this manner unless he first became cognizant of the intention himself, or had some reason to believe that it was likely the driver would behave in such a fashion. The petition does allege that Vamadoe was acting as the agent of McKinney, Jr., but it fails to charge the latter with any imputed negligence by reason of this relationship; rather, it charges him with primary negligence in permitting Vamadoe to swerve the vehicle, and failing to warn the plaintiff of Varnadoe’s future action. Until facts are alleged which would show a permission granted to perform in a negligent manner, there appears no duty resting on McKinney, Jr. to give a warning, and the allegation that he permitted the act is a conclusion unsupported by any facts. In the absence of such allegations, or others grounding the liability on an agency relationship, the general demurrer of this defendant should have been sustained.

The defendant Vamadoe urges by demurrer that the petition fails to set out a cause of action against him as the operator of the vehicle because no gross negligence is alleged against him. It is trae that the petition alleges in paragraph 13 (f) that this defendant failed to exercise ordinary care in certain respects, which amounts only to an allegation of ordinary negligence. In paragraph 13(h), however, it is stated that this defendant was negligent “in swerving said vehicle to its right in a gross and reckless manner,” etc. In Cain v. State, 55 Ga. App. 376 (4), supra, an inadvertent act accompanied by recklessness is said to be something more than ordinary negligence, and to amount at the least to gross negligence. We so construe this subparagraph. Further, in the absence of 'a special demurrer on the ground of duplicity, it is not at all fatal to the petition that both ordinary and gross negligence are charged in the same count. Cf. Flint Explosive Co. v. Edwards, 84 Ga. App. 376, 388 (66 SE2d 368). The petition states a cause of action as against this defendant.

Judgments reversed in Cases Nos. 40243 and 40244■ Judgment affirmed in Case No. 40246.

Nichols, P. J., Bell, P. J., Frankum, Jordan, Hall, Eberhardt and Pannell, JJ., concur. Felton, C. J., dissents.