General Motors Corporation v. Jenkins ( 1966 )

Per Curiam.

The first petition in this case filed January 23, 1963, was amended on June 5, 1964, by striking its contents and filing a rewritten petition. On September 25, 1964, the court sustained general demurrers of both defendants and granted 30 days leave to amend; this time was by further order extended to November 23, 1964. On November 20, the plaintiff again amended by striking the pleadings filed and substituting another rewritten petition, to which demurrers and objections were filed. Another amendment was added October 20, 1965, which was objected to because, among other reasons, it was not filed prior to the expiration of the time allowed for amendment by the court’s first order on demurrers as later extended. The contentions are that under the law of the case the stricken petition of June 5, 1964, failed to set forth a cause of action; that the defect was not cured by the rewritten petition of November 20, 1964, and that the amendment of October 20, 1965, came too late. A final order was entered overruling these objections on January 12, 1966, and also overruling the general and sustaining certain special demurrers. It is settled by Northside Manor, Inc. v. Vann, 219 Ga. 298 (133 SE2d 32) that, where a general demurrer is sustained with a stated number of days in which an amendment may be filed, and no such amendment is offered within the time limited, it is the law of the case that (1) the original petition failed to set out a cause of action, and (2) an amendment offered after the time limited is nugatory. Where, however, a material amendment is in fact allowed and filed subject to demurrer or objection within the time allowed by the court’s order, and where nothing in such original order purports to dismiss the petition in praesenti, the question of the petition’s sufficiency is opened for a fresh adjudication. Perkins v. First Nat. Bank of Atlanta, 221 Ga. 82 (7) (143 SE2d 474). This being so, where the petition is again amended prior to any ruling on the demurrers filed to the petition as amended, the court may properly consider, in passing on the sufficiency of the petition as a whole, amendments subsequently filed, and if the pleadings in their final form set out a cause of action he may properly overrule the renewed general demurrer. Bradshaw v. Crawford, 77 Ga. App. 441 (49 SE2d 169); Smith v. Bugg, 35 Ga. App. 317 (1) (133 SE 49). We do not mean by this that if the petition as first amended is so utterly lifeless that there is nothing to amend by, a later amendment might cure the defect; but where, as here, the petition is in fact materially amended, and does present enough for adjudication, then a subsequent amendment is not to be factitiously disallowed where it does in fact tend to complete and perfect the cause of action already set out. The facts here do not bring the case within the ruling in Simpson v. Hayes, 208 Ga. 754 (69 SE2d 567). There it had become the law of the case both that the original petition failed to set out a cause of action, and that the first amendment filed within the time allowed by the court failed to add any relevant and material matter. After the decision to that effect in Hayes v. Simpson, 83 Ga. App. 22 (62 SE2d 441) the plaintiff again attempted to amend, long after the time for amendment had run out, and the situation was then just as though no amendment had been offered prior to the expiration of the time allowed in the court’s order sustaining the general demurrer, which puts this case on a par with Northside Manor, Inc., 219 Ga. 298, supra. In the present case the court properly considered the last rewritten petition along with the amendment of October 20, 1965.

Where a vehicle is brought to an automobile dealer by its owner for the purpose of having it repaired and the owner reveals to the dealer the fact that there is a dangerous defect in the vehicle, the failure of the dealer to discover and correct the defect when he could have done so by the exercise of ordinary care relieves the manufacturer of liability, unless the manufucturer should have foreseen that a dealer might fail to discover and remedy the defect by the exercise of ordinary care. The petition in this case fails to make this one allegation which would bring the manufacturer’s liability into being. Southern R. Co. v. Webb, 116 Ga. 152 (42 SE 395, 59 LRA 109); Restatement of the Law, Torts 2d, Yol. 2, § 452 (2) (see comment on Subsection (2) at pages 488 and 489; “d” under Subsection (2), “e”, “f” and illustration 10; see also § 447 (a), (b) and (e)). See Maytag Co. v. Arbogast, 42 Ga. App. 666, 667 (1) (157 SE 350), which recognizes that the rule that the dealer’s failure to inspect is not an intervening cause might be different where the dealer had knowledge of the defective condition. Harley v. General Motors, 97 Ga. App. 348 (103 SE2d 191); Elrod v. King, 105 Ga. App. 46, 49 (123 SE2d 441); City of Villa Rica v. Couch, 281 F2d 284 (5th Cir.); Drazen v. Otis Elevator Co. (R. I.) (189 A2d 693); Ford Motor Co. v. Atelier (Ky.), 310 SW2d 510; E. I. DuPont de Nemours & Co. v. Ladner, 221 Miss. 378 (73 S2d 249); Rulane Gas Co. v. Montgomery Ward & Co., 231 N.C. 270 (56 SE2d 689); Ford Motor Co. v. Wagoner, 183 Tenn. 392 (192 SW2d 840, 164 ALR 364); Kline v. Moyer, 325 Pa. 357 (191 A 43, 111 ALR 406); Ford Motor Co. v. McDavid, 259 F2d 261 (4th Cir.) cert. den. 358 U. S. 908; Nishida v. E. I. DuPont de Nemours & Co. (5th Cir.) 245 F2d 768; Crude Oil Contracting Co. v. Insurance Co. of North America, 118 F2d 476 (10th Cir.); Annotation, 164 ALR 371; 2 Harper & James, The Law of Torts, 1555, § 28.10.

The court erred in overruling the general demurrer of General Motors Corporation.

Is the manufacturer also liable as principal for any negligence of the dealer as agent in failing to discover and remedy the dangerous condition created by the loose rear suspension axle bolt? Nothing else appearing, a simple statement that the wrongful act was committed by the defendant’s agent or servant in the prosecution of the principal’s business and within the scope of the employment or agency is sufficient to invoke the doctrine of respondeat superior, but where the special facts by which the pleader claims that the relationship of principal and agent exists are set out, these facts take precedence over the conclusory statement and will control in determining whether an agency has been properly alleged. Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 (1, 3) (58 SE2d 559). In addition to the conclusory allegation that the manufacturer, through its agent the dealer, committed all acts of negligence alleged against the latter, the following facts are set out: General Motors is in the business of manufacturing automobiles for sale through authorized franchised dealers; the defendant dealer and the corporation entered into a written contract making the dealer an authorized service agent for the purpose of selling and servicing GMC products, the contract being a personal service contract under which it was the dealer’s duty to provide prompt and efficient service, receive and investigate complaints, inspect products before sale and make the 1,000-mile inspection above referred to, for the labor 'costs of which it is reimbursed by the manufacturer. These allegations were attacked by numerous demurrers, several of which were on the proposition that the statements of agency relationship were conclusions drawn from the pleader’s interpretation of a written contract and that the terms of the contract not being pleaded, the facts alleged failed to show an agency relationship. While we recognize the general rule that a contract pleaded only as matter of inducement to set up the duty, the violation of which is the gravamen of the action need not be pleaded with such specificity as where it is itself the foundation of the cause of action, nevertheless, it is obvious that the determination of whether the relationship between the manufacturer and dealer is that of principal and agent or that of independent contractors must be determined from the written instrument, and it would be useless to make a determination based on the incomplete allegations of the petition where the instrument, when before the court, might demand a contrary conclusion. “If from the allegations of the petition it is obvious that there are pertinent and material provisions of the contract which are not pleaded a demurrer calling for them will lie.” Gardner v. Consolidated Loan &c. Co., 111 Ga. App. 581, 582 (142 SE2d 416). Similar allegations of agency as to a dealer franchise agreement were held in Harley v. General Motors, 97 Ga. App. 348, supra, to be equally consistent with an agency or an independent contractor situation, and demurrers to the allegations of agency were sustained. The trial court erred in overruling the special demurrers calling for the written contract and those attacking the allegations of agency as conclusory in nature.

We next consider the liability of the dealer. This is controlled by Griffith v. Chevrolet Motor Division of G.M.C., 105 Ga. App. 588 (2) (125 SE2d 525) in which it was held: “A repairman owes an original duty to the public to use ordinary care in making repairs so as not to endanger the person or property of others by his negligent performance, when the consequences of such conduct may be foreseen.” The trial court properly overruled the general demurrer of this defendant.

As to case No. 42163, it was error to overrule special demurrers 5, 6(c), 7(b) (d) (e) (f) (h), 8(c) (d) (e) (f), 9(a) (d) (e), 10(a) (b) (f), 11(a) (b) (d), 12(d), 13(e) (f), 14(a) (c), 15(d) (e) (g) (k) (1) and 17(d). The remaining special demurrers were properly overruled, but the special demurrer numbered 3 to Paragraph 46 of the last amendment should have been sustained.

As to Case No. 41264, the general demurrer, special demurrer 20 to Paragraph 38, and special demurrers 22, 23, 27, 28, 29 and 30 to Subparagraphs (b) (e) and (f) of Paragraph 45 of the petition were properly overruled. The trial court erred in overruling special demurrers 21, 25, 26, 31, 32, 33, 34 and 39 to Subparagraphs (a), (d), (f), (g), (h) and (k) of Paragraph 45. The remaining special demurrers to which exception is taken were properly overruled.

Judgments affirmed, in part; reversed in part.

Felton, C. J., Bell, P. J., Jordan, Hall and Eberhardt, JJ., concur. Frankum, P. J., Pannell and Deen, JJ., dissent to ruling in Division 2. Quillian, J., not participating.