Opinion
37325, 37326.
DECIDED OCTOBER 6, 1958. REHEARING DENIED OCTOBER 22, 1958.
Action for damages. Floyd Superior Court. Before Judge Hicks. June 10, 1958.
Fullbright Duffey, Henry J. Fullbright, Jr., for plaintiff in error.
Wright, Rogers, Magruder Hoyt, contra.
Wilson, Branch Barwick, for parties at interest not parties to record.
The evidence is sufficient to sustain the verdict as to the general grounds.
DECIDED OCTOBER 6, 1958 — REHEARING DENIED OCTOBER 22, 1958.
Mrs. Margaret L. Summerour brought an action for damages and personal injuries against Andrews Taxi U-Drive-It Company in the Superior Court of Floyd County.
The plaintiff's original petition, as amended, alleges substantially: (1) Floyd County jurisdiction; (2) That the defendant is indebted to the plaintiff for $51,876 by reason of facts hereinafter set out; (3) That the defendant is in the business of furnishing automobiles for hire to the general public; (4) That on or about January 29, 1956, the defendant rented a 1953 Studebaker to one Andrew H. Hunt; (5) That at about 6:40 p. m. January 29, 1956, the said vehicle was proceeding in a southerly direction on four-lane U.S. Highway 41 being operated at that time by one Warren T. Smith with the consent and knowledge of said Hunt; (6) That at a point between Pace's Ferry Road and Mt. Paran Road while traveling at a speed of approximately 50 miles per hour said Smith overtook another vehicle being operated in the same direction and as they approached the rear of the vehicle ahead Smith applied the brakes of the Studebaker; that the brakes failed to operate or to slow the vehicle down and then suddenly and without warning the brake on the left front wheel caught, causing the vehicle to swerve violently to its left across the center portion of the highway and into the vehicle in which the plaintiff was riding which was approaching from the opposite direction; (7) That at the point of collision the four-lane highway is separated in the center by a raised portion approximately two to three feet wide; (8) That the vehicle in which the plaintiff was riding was being operated in a northerly direction on her side of the highway when the said Smith suddenly and without warning turned or was forced abruptly across the center portion and collided with the plaintiff's vehicle; (9) That the defendant owes a legal duty to furnish to its customers automobiles which must be in efficient operating condition so as not to endanger members of the public using the streets and highways; (10) That the vehicle furnished to the said Hunt was not in good mechanical condition in that its brakes were defective, the brake lining on the right front wheel being worn to the point of ineffectiveness and the brake shoe being soaked with oil or grease, this condition causing the vehicle to pull or veer to the left upon application of the brakes; (10a) That the condition of said automobile was known or could have been known to the defendant through the exercise of ordinary care; (11) That the proximate cause of the said collision was the negligence of the defendant in offering for hire a vehicle in a defective and dangerous condition and in hiring such vehicle to Hunt; (12) That as a result of the defendant's negligence the plaintiff received multiple injuries which were described in detail; (13) That due to such injuries it was necessary for the plaintiff to undergo extensive plastic surgery to her face; (14) That the plaintiff has received permanent disfigurement and scars; (15) That the plaintiff must undergo additional painful surgery in order to achieve maximum repair; (16) That the plaintiff was hospitalized at Grady Hospital for emergency treatment and then transferred to Georgia Baptist Hospital for seven days; (17) That upon her discharge from the hospital she was required to remain at home in bed for seven days and to continue treatment as an out patient; (18) That adhesive strapping to plaintiff's foot was maintained until February 24, 1956, during which time walking was extremely difficult and painful; (19) That by reason of the injuries the plaintiff was unable to work for five weeks and lost a total of $306 in pay; (20) That the plaintiff incurred medical expenses totaling $570; (21) That the plaintiff must undergo additional surgery and medical expense in the sum of approximately $1,000; (22) That the plaintiff's 1953 Chevrolet was a complete loss due to the collision at a reasonable loss of $1,000; (23) That plaintiff has been injured and damaged and seeks to recover $51,876 for medical expenses, lost earnings, and pain and suffering past, present and future.
By further amendment the plaintiff added counts 2 and 3 to the petition which alleged substantially the same facts as count 1. The defendant filed a general demurrer which the court sustained as to counts 2 and 3 of the amended petition thereby dismissing the said two counts, and it is to this judgment that the plaintiff excepts in the cross-bill of exceptions.
The defendant without waiving its demurrer previously filed, filed a plea and answer to the petition showing substantially as follows: The defendant admits paragraphs 1, 3 and 4 of the petition, denies paragraphs 2, 10, 11 and 23, and for lack of sufficient information neither admits nor denies paragraphs 6, 7, 8, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22. The defendant answers paragraph 5 of the plaintiff's petition neither admitting nor denying the allegations and alleging that the defendant did not rent, hire or allow said Warren T. Smith to drive its said automobile and that the said Hunt, by the very terms of the rental of said car, was not allowed to permit another to drive the said automobile without consent of the defendant and that defendant gave no such consent. Answering paragraph 9 of the plaintiff's petition the defendant alleges that on that date it did furnish to a Mr. Hunt an automobile in an efficient operating condition, and specifically that the said Smith was not a customer of defendant and that it furnished nothing to said Smith. For lack of sufficient information defendant can neither admit nor deny the subparagraphs of paragraph 12 of the plaintiff's petition describing her injuries, but does, however, deny specifically that the defendant was negligent in any respect in the premise of said paragraph.
The jury returned a verdict in favor of the plaintiff in the amount of $5,000. The defendant filed a motion for new trial which it amended by adding eight special grounds. The court denied this motion, and it is to this ruling that the defendant here excepts and assigns the same as error as being contrary to law.
The plaintiff filed her cross-bill of exceptions assigning error on the court's sustaining of the defendant's general demurrer to counts 2 and 3 of the plaintiff's amended petition on the ground that each of said counts sets out a legal cause of action against the defendant.
The evidence shows substantially as follows: Mrs. Margaret Summerour testified that on January 29, 1956, she, her son and a Mr. Gordon Peace were traveling in her 1953 Chevrolet on the inside lane of the four-lane Marietta Highway going towards Marietta with Mr. Peace driving at about 40 to 45 miles per hour; that it was about dark and the car lights were on; that she saw the lights and wheels of a car traveling towards Atlanta cross the divider suddenly and collide with her car; that she was seriously injured and required emergency treatment at Grady Hospital and further treatment and surgery at Georgia Baptist Hospital; that her car was sold for junk, and her facial injuries will require additional plastic surgery.
Steve James Futo, an expert in his business of repairing wrecked automobiles, testified that he examined the right front wheel of the defendant's Studebaker automobile and found that the brake lining was worn thin and had brake fluid on it; that this condition was sufficient to cause the braking action to slip; that in his opinion the brake fluid had been leaking prior to the accident and the faulty braking action could have been discovered in a road test.
Gordon M. Peace testified that he was the driver of the 1953 Chevrolet; that the Sunday traffic was very heavy and they were on the inside lane of the northbound traffic when he saw the lights of a car in the oncoming traffic flare out in an abrupt manner and he realized it was going to collide with their car; that he could not swerve to the right or any way to avoid it and was involved in a head-on collision; that he had driven the plaintiff's car before and it was in good mechanical condition and would bring approximately $1200 on the auto market.
Dr. Robert E. Wells and Dr. Charles P. Yarn testified as to the seriousness and extent of the plaintiff's injuries, going into much detail concerning them.
A. H. Hunt testified that he rented the 1953 Studebaker from the defendant; that he signed a receipt and made a $10 deposit; that he had to show the defendant his driver's license; that he drove to Battey Hospital and on the return trip to Atlanta let Warren Smith drive the car; that they noticed the steering wheel pulling to the left and it would do the same thing when the brakes were applied; that when they reached the four-lane highway between Marietta and Atlanta they were involved in a wreck in which Mr. Smith was killed and the witness rendered unconscious. On cross-examination the witness testified that he had not had any trouble with the brakes on the trip to Battey Hospital.
Several other witnesses gave testimony which tended to substantiate count 1 of the plaintiff's petition, as amended.
1. We have set out the evidence somewhat in detail. It is entirely sufficient to sustain the verdict as to the general grounds.
2. Counsel for the defendant has apparently made no effort to comply with the rules regarding appeal on special grounds. None of the special grounds as shown are sufficient, of themselves, to be the basis for a decision thereon by this court.
3. Since we are affirming the case on the general grounds on the main bill, the cross-bill is dismissed.
Judgment affirmed on main bill. Cross-bill dismissed. Townsend and Carlisle, JJ., concur.