Moody v. Martin Motor Co. , 76 Ga. App. 456 ( 1948 )

An independent contractor owes an original duty to the public not to endanger the lives and limbs of others by the negligent performance of a contract, when the consequences of such conduct may be foreseen.

DECIDED JANUARY 13, 1948. REHEARING DENIED FEBRUARY 14, 1948. H. G. Moody brought an action for damages against Martin Motor Company, in the Superior Court of Liberty County. The material allegations of the petition were: On and before July 15, 1946, the plaintiff was an employee of Liberty Ice and Water Company of Hinesville, and among the duties required of the plaintiff was that of delivering ice. The defendant operates a garage and repair shop for compensation and undertakes and agrees to repair automobiles and motor vehicles for its customers and the public generally. On July 12, 1946, and for a considerable period of time prior thereto, one of the Ford trucks belonging to Liberty Ice and Water Company was badly in need of repair in connection with the steering gear, the radiator, and the brakes. On the date first above mentioned the truck was delivered by the employer of the plaintiff to the defendant with specific instructions to repair the steering gear, the radiator, and the brakes, and the defendant accepted the truck and agreed to make such repairs. At the time truck was delivered to the defendant for repairs, the steering gear was particularly defective in that the drag link had become separated from the steering arm, and had been temporarily connected by means of a piece of wire, which condition was called to the attention of the defendant at the time the truck was delivered to it for repairs, and which condition could easily have been discovered by the defendant in the exercise of ordinary care and diligence. On July 15, 1946, the defendant delivered the truck to the plaintiff's employer, then and there representing to the plaintiff's employer that the requested repairs had all been completed, with the exception of a radiator core which would be installed later. The truck when delivered had not been repaired as represented by the defendant, but on the contrary neither the brakes nor the steering gear had been repaired and were in the same or substantially the same condition as when delivered to the defendant for repairs, which fact was not apparent. The plaintiff, on the day the truck was delivered by the defendant, was instructed to load the truck with ice and deliver the ice at a point north of Midway on the Coastal Highway, which the plaintiff proceeded to do. On reaching a point two miles north of Midway the drag link became separated from the steering arm on the truck, causing the truck to swerve off the highway and plunge down an embankment, and throwing the plaintiff from the truck to the ground with great force and thereby injuring him severely. After the plaintiff discovered that the steering gear of the truck had become disconnected, rendering him unable to control the course of the truck, he applied the brakes to bring the vehicle to a stop, but then discovered that the brakes had not been repaired, as the application of the braking apparatus had no effect whatever in slowing the truck. The plaintiff also alleged: that he was in the exercise of all due care and diligence and could not have avoided his injuries by the exercise of such care and diligence; and that the proximate cause of his injuries was the negligence of the defendant, in that (a) the defendant failed to repair the steering apparatus, (b) the defendant failed to repair the brakes on the truck, (c) after having failed to make those repairs, he represented to the plaintiff's employer that they had been made, and (d) the defendant failed to put the truck in a condition where it could be safely operated.

The defendant filed demurrers based on the grounds: that the petition set forth no cause of action; that the allegations of the petition do not set out whether the plaintiff is proceeding on contract or in tort and the petition sounds in both; and it appears from the facts alleged that different causes of action have been improperly united, to wit, one arising ex contractu because of the defendant's failure to make certain repairs on a motor vehicle belonging to the plaintiff's employer, and one arising ex delicto. The court sustained the demurrers and dismissed the action, and the plaintiff excepted to that judgment. Code § 105-106 provides: "No privity is necessary to support an action for a tort; but if the tort results from the violation of a duty, itself the consequence of a contract, the right of action is confined to the parties and privies to that contract, except in cases where the party would have had a right of action for the injury done, independently of the contract." This is a codification of the common law. "It is the orthodox and traditional general rule that a manufacturer or packer of a defective article is not liable for injuries to the person or property of an ultimate consumer who has purchased from a middleman, unless the article was inherently dangerous to life or property, — at least where the wrongful act or acts were not known at the time — upon the theory that there is no contractual relation between the parties." 140 A.L.R. p. 192, Note II. Many so-called exceptions have been made to the rule stated in the Code section above. See annotation in 140 A.L.R. 191, and previous ones referred to therein. Manufacturers have been included in these exceptions.Simmons v. Hardin, 75 Ga. App. 420 (43 S.E.2d 553), and cases and texts cited. Restatement of the Law of Torts, Vol. II, p. 1039, § 388, states: "One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so. Comment (a) The words ``those whom the supplier should expect to use the chattel' and the words ``a person for whose use it is supplied' include not only the person to whom the chattel is turned over by the supplier but also those who are members of a class whom the supplier should expect to use it or occupy it or share in its use with the consent of such person, irrespective of whether the supplier has any particular person in mind. Thus, one who lends an automobile to a friend and who fails to disclose a defect, of which he himself knows and which he should recognize as making it unreasonably dangerous for use, is subject to liability not only to his friend but also to any one whom his friend permits to drive the car or chooses to receive in it as passenger or guest if it is understood between them that the car may be so used. So too, one entrusting a chattel to a common carrier for transportation must expect that the chattel will be handled by the carrier's employees. . Comment (b) This Section states that one who supplies a chattel for another to use for any purpose is subject to liability for bodily harm caused by his failure to exercise reasonable care to give those whom he may expect to use the chattel any information as to the character and condition of the chattel which he possesses and which he should recognize as necessary to enable them to realize the danger of using it. A fortiori, one so supplying a chattel is subject to liability if by word or deed he leads those who are to use the chattel to believe it to be of a character or in a condition safer for use than he knows it to be or to be likely to be. Illustration 1. A sells to B a shotgun which B states is to be given to his son C as a birthday present. A tells B that the gun is made by the S Company whose product is known to be of the highest character. A knows that the gun is made by the Y Company, which notoriously puts out an inferior gun. B gives the gun to C. While C is using the gun it explodes because of defective construction. A is liable to C for the harm which C sustains. Comment c. Persons included as ``suppliers.' The rules stated in this Section and throughout this Topic apply to determine the liability of any person, who for any purpose or in any manner gives possession of a chattel for another's use or who permits another to use or occupy it while it is in his own possession or control, without disclosing his knowledge that the chattel is dangerous for the use for which it is supplied or for which it is permitted to be used. It, therefore, applies to vendors, lessors, donors, or lenders irrespective of whether the chattel is made by them or a third person. It applies to all kinds of bailors irrespective of whether the bailment is for use, transportation, safekeeping or repair. It applies also to one who undertakes the repair of a chattel and who delivers it back with knowledge that it is defective because of the work which he is employed to do upon it (See § 403). It applies also to anyone who permits another to use or share in the use of a chattel while it is in his own possession or control. It, therefore, applies to determine the liability of one who drives another in an automobile either as a passenger or guest, in so far as the harm which the other sustains is caused by the dangerous condition of the automobile and not by the manner in which it is operated. (d) One supplying a chattel to be used or dealt with by others is subject to liability under the rule stated in this Section, not only to those for whose use the chattel is supplied but also to third persons in whose vicinity the supplier intends or should expect it to be used. . . (f) As pointed out. . the phrase ``subject to liability' is used to indicate that the person whose conduct is in question is liable, if, but only if, there also exist the other conditions necessary to liability. The person using the chattel may disable himself from bringing an action either by his contributory negligence in voluntarily using the chattel with knowledge of its dangerous condition or by his contributory negligence in failing to make a proper inspection which would have disclosed the defect or in failing to use the precautions obviously necessary to the safe use of the chattel." Further, in Restatement of the Law of Torts, p. 1053, § 389, it is stated: "One who supplies directly or through a third person a chattel for another's use knowing that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for bodily harm caused by such use to those whom the supplier should expect to use the chattel or to be in the vicinity of its probable use and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character." In § 403, ibid., this rule is stated: "One who as an independent contractor makes, rebuilds, or repairs a chattel for another and turns it over to the other knowing that his work has made it dangerous for the use for which it is turned over is subject to liability as stated in §§ 388 and 390." Section 404 states: "One who as an independent contractor negligently makes, rebuilds or repairs a chattel for another is subject to the same liability as that imposed on negligent manufacturers of chattels under the rules stated in §§ 395 to 398." See cases cited under §§ 403 and 404 in Restatement in the Courts (Perm. Vol.) 1932-1944, p. 717-8.

As is seen from the foregoing, the same liability which applies to a manufacturer applies to an independent contractor who repairs an article or machine. In McPherson v. Buick Motor Co., 217 N.Y. 382 (111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas. 1916C, 440), the court said: "We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law." To us that means that an independent contractor owes an original duty, before any contract is made, not to endanger the lives and limbs of others by the negligent performance of a contract, when the consequences of such conduct may be foreseen. The liability then, is consonant with the Code and the common law and is not an exception. See also 27 Am. Jur., p. 535, 536, § 56; Davey v. Turner, 55 Ga. App. 786 (191 S.E. 382); Young v. Smith Kelly Co.,124 Ga. 475 (52 S.E. 765, 110 Am St. R. 186, 4 Ann. Cas. 226). We think that the petition sets forth a cause of action as against a general demurrer. Whether the plaintiff is barred by his own negligence or whether the defendant is insulated from liability by reason of the fact that the owner of the truck discovered the defects and did not warn the plaintiff, are matters which also cannot be determined from the pleadings before us. The action is in tort and is not subject to the general or special demurrers.

The court erred in sustaining the demurrer and dismissing the action.

Judgment reversed. Sutton, C. J., and Parker, J., concur.