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BURKS v. GREEN et al.
Action for damages; from Fulton Superior Court-- Judge Moore. October 18, 1951.
Where one supplies another with an automobile to be used by the latter, who is not qualified to drive it, which is known to the owner, and injury results to a third person by reason of the incompetence of the driver, a jury is authorized to find this to be such negligence as would authorize recovery against the owner. Accordingly, the petition here, which alleges these facts, is not subject to general demurrer.
Mrs. Alma Burks filed suit in the Superior Court of Fulton County, joining as defendants Mrs. Lenora Wheeler, West Peachtree Motors Inc., and Ralph Green, an employee of the corporation. The petition alleges in substance: that the plaintiff was a passenger in an automobile operated by Mrs. Wheeler, which had a "standard" gear-shift; that she drew up to the curb in front of the motor company to discharge a passenger, and, while there, the defendant Green came out and undertook to interest her in purchasing a new 1951 Pontiac automobile with hydromatic drive; that at Green's invitation they got into the Pontiac, and the defendant Green drove them around the block, explaining to Mrs. Wheeler the mechanism located on the steering wheel; that he did not give any explanation whatever as to the brake and accelerator; that, after they returned to the front of the motor company, Mrs. Wheeler told the defendant Green that she wanted to discuss the matter with her son before buying a new car, whereupon Green told her to take the automobile and drive it so that her son could see it; that he then got out of the automobile and Mrs. Wheeler slid over into the driver's seat; that the plaintiff remained in the automobile; that Mrs. Wheeler told Green she knew nothing about the operation of a car with hydromatic drive, whereupon Green assured her he had given her all necessary instructions and that she would have no trouble with the controls; that Mrs. Green was an experienced driver with a standard-type automobile, but that she had never driven one with hydromatic drive, and neither she nor the plaintiff knew anything about the difference between the two types of automobiles; that Green knew this; that he also knew, but failed to inform Mrs. Wheeler, that whereas a standard type automobile has three foot controls, the second from the left being the brake, a hydromatic drive automobile has only two foot controls, the second from the left being the accelerator, and that "said Green knew, or from the facts which were known to him should have realized, that said Pontiac automobile with hydromatic drive, while being operated by said Mrs. Wheeler without any more instructions than he had given her, was, or was likely to be, dangerous for the use which he authorized her to make of it; that said Green had no reason to believe that said Mrs. Wheeler or the petitioner would realize the danger of driving said Pontiac without more instructions than he had given; that said Green failed to exercise reasonable care to inform said Mrs. Wheeler of the facts which would likely make her operation of said automobile dangerous, to wit, that the first foot pedal from the left was the brake and not the clutch, and that the second foot pedal from the left was the accelerator and not the brake, and that, if she stepped upon the accelerator instead of the brake, it would likely create a dangerous situation. It was also alleged that Green knew or should have known that under these circumstances a negligent operation of the foot pedals of the Pontiac might be expected, and that the driving of said automobile while so operated was likely to be dangerous. The petition further alleges that the defendant Mrs. Wheeler then drove the Pontiac without examining the foot pedals; that, as she reached the first intersection, the traffic light turned red; that she then looked at the foot pedals for the first time and, "although the brake and accelerator pedals were in the same place and in the same relative position that they occupied in a standard-drive automobile, said Mrs. Wheeler stepped on the second pedal from the left, which was the accelerator, instead of stepping on the brake which was the first pedal from the left, and as she did so said automobile lunged forward and into the side of a large oil truck which was crossing" the intersection. As a result of the collision the plaintiff suffered certain described injuries.
General demurrers to the petition were sustained as to the defendants Ralph Green and West Peachtree Motors Inc., and the exceptions are to these rulings.
(After stating the foregoing facts.) This court has held that one who turns over to another for his own use an automobile which he knows to be defective, and which the driver does not know to be defective, is liable to the latter for injuries proximately caused by the defective instrumentality. Nash v. Reed, 81 Ga. App. 473 (59 S. E, 2d, 259); McDaniel v. Jones, 58 Ga. App. 495 (199 5. E. 233); Evans v. Carroll, 85 Ga. App. 227 (68 S. E. 2d, 608). See also, to the same effect, Foster v. Farra, 117 Ore. 286 (243 Pac. 778); Jones v. Raney Chevrolet Co., 213 N. C. 775 (197 S. E. 757); 2 Blashfield's Automobile Law 1335, 16. This court has also held that one who turns an automobile over to another for his own use, knowing such other is incompetent to drive the same, may be held liable by third persons who suffer injuries proximately resulting from such incompetent driving. Nugrape Bottling Co. v. Knott, 47 Ga. App. 539 (1) (171 S. E. 151); Crisp v. Wright, 56 Ga. App. 338 (192 S. E. 390); Durden v. Maddox, 73 Ga. App. 491, 493 (37 S. E. 2d, 219). See also Elliott v. Harding, 107 Ohio 501 (140 N. E. 338, 36 A.L.R. 1128). This case, of course, is not predicated on the theory that the automobile in question was defective, or that the driver was incompetent to drive the type of automobile to which she had been accustomed. However, the rules laid down in these cases are applicable, because the reasoning behind both these rules of law is that, though the act itself be lawful, yet if in its effects or consequences it is productive of injury to another, and such effects or consequences might in the exercise of ordinary care have been foreseen by the party, he may be held liable.
The case made out against Green and his principal, as alleged in the petition, is that Green, knowing that Mrs. Wilson (a) was accustomed to driving an automobile in which the brake pedal was second from the left, (b) that she had never driven an automobile in which the accelerator was the second pedal from the left, and (c) that he assured her he had given her all the instructions necessary for her to drive safely the automobile, in response to her protest that she knew nothing about the operation of a car with hydromatic drive. The allegations of the petition state facts sufficient to authorize a jury to find that the confusion of the driver in the emergency which immediately followed her taking the car over was the result of her lack of knowledge and experience in operating an automatic-drive vehicle, which should have been in the exercise of ordinary care foreseen by the defendant Green. The petition at the same time fails to show that the plaintiff also knew or ought to have known these facts, and that for this reason she assumed the risk of possible injury to herself. The petition alleges that the plaintiff also had no experience with an automobile equipped with hydromatic drive; and while it alleges that she was present during the time when the defendant Green was demonstrating the automobile to the defendant Mrs. Wheeler, that allegation also shows that she was present at the time that the defendant Green assured the defendant Mrs. Wheeler that he had given her all instructions necessary.
It is true that this is the first case involving these particular facts. However, "The novelty of the complaint is no objection when an injury cognizable by law is shown to have been inflicted on the plaintiff . . . Where the case is only new in instance, and the sole question is upon the application of a recognized principle to a new case, it will be just as competent to courts of justice to apply the principle to any case that may arise two centuries hence as it was two centuries ago." Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 S. E. 68). As stated in Restatement of the Law of Torts, Vol. II, p. 1044: "There are many chattels which, even though perfect, are unsafe for any use or for the particular use for which they are supplied unless their properties and capabilities are known to those who use them. If such a chattel is supplied to another whom the supplier should realize to be unlikely to know its properties and capabilities, the supplier is required to exercise reasonable care to give to the other such information as he himself possesses." Granting that an automobile is not per se a dangerous instrumentality ( Fielder v. Davison, 139 Ga. 509, 77 S. E. 618), yet when operated by an incompetent driver it may become so. As stated in 42 C. J. 1078, 836: "The owner of a motor vehicle may be held liable for a resulting injury upon the ground of negligence where he intrusts the operation his vehicle to an inexperienced or incompetent driver with knowledge of such incompetency, some of the cases resting upon the theory that in so doing he converts the vehicle into a dangerous instrumentality. This liability does not rest upon the doctrines of respondeat superior, but nevertheless the injurious conduct of the driver resulting from his incompetency is a necessary factor in the liability of the owner. Hence, the operator need not have been the servant or agent of the owner, and may have been engaged upon his own personal business. This duty and liability applies as to a guest in the owner's vehicle as well as to a stranger on the highway." The decisions of McDaniel v. Jones, 58 Ga. App. 495 (199 S. E. 233), and Harris v. Whitehall Chevrolet Co., 55 Ga. App. 130 (189 S. E. 392) are distinguished on their facts because in those cases she negligence of the driver, a prospective purchaser, could not reasonably have been anticipated by the automobile dealer furnishing the vehicle.
It is alleged that the defendant Green was all agent of the defendant West Peachtree Motors Inc., and at the time of giving the instructions to the defendant Mrs. Wheeler and turning the automobile over to her he was acting within the scope of his employment. The allegations of negligence against the defendant Green are therefore imputable to the defendant West Peachtree Motors Inc. They are sufficient, if supported by evidence, to authorize a jury to find that the defendant Green in the exercise of ordinary care should have anticipated that the defendant Mrs. Wheeler was incompetent to drive the automobile, and that it was, when operated by her under the conditions alleged in the petition, likely to become a dangerous instrumentality.
The trial court erred in sustaining the general demurrers of the defendants, Ralph Green and West Peachtree Motors Inc., and in dismissing the petition as to them.
Judgment reversed. McIntyre, P, J., and Gardner, J., concur.
Geo. Starr Peck, for plaintiff.
Saturday May 23 04:37 EDT

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