Opinion
32883.
DECIDED MARCH 3, 1950.
Damages; from Savannah City Court — Judge MacDonell. November 28, 1949.
Ernest J. Haar, for plaintiff in error.
Oliver, Oliver Davis, contra.
1. Where a prospective purchaser obtains a used automobile from a dealer for the purpose of driving it with a view of purchasing it and has a collision with another automobile, it is a jury question whether the prospective purchaser's negligence in operating the automobile after he discovered that the brakes were defective was the preponderating cause of the collision, or whether the negligence of the dealer in furnishing him with the automobile with the knowledge that the brakes were defective was a contributing proximate cause. Count one stated a cause of action.
2. Count two also stated a cause of action, differing from count one principally in that no knowledge of the defective brakes is charged to the prospective purchaser.
DECIDED MARCH 3, 1950.
Joseph B. Cummins sued H. L. Bowyer Jr., doing business as Bowyer Motors, and Lyel Cason for damages allegedly sustained by reason of a collision between the plaintiff's automobile and an automobile owned by Bowyer and being operated by the defendant Cason. The first count of the amended petition alleged: that on May 21, 1949, about noon, H. L. Bowyer Jr., in the course of doing business, delivered to defendant Cason to drive and thus try out the Dodge automobile in anticipation of making a sale of the automobile to Cason; that Cason, at and before the time the automobile was delivered to him, was not an experienced automobile driver having had not more than two years' experience in driving any kind of automobile and having not previously driven an automobile on the streets of the City of Savannah; that Bowyer, at and before the time the automobile was delivered into Cason's possession, made no inquiry of Cason whatever as to the nature and extent of his experience and did not send anyone to accompany Cason while he was driving and trying out the automobile; that thereafter, Cason, as agent for the joint use of himself and Bowyer, was driving such automobile on Bay Street extension, both beyond and within the limits of the City of Savannah; that the brakes on the Dodge automobile when delivered to Cason were defective in a kind and manner unknown to the petitioner but was known to Bowyer; that the knowledge of such defect was acquired by Cason about 20 minutes before the time of the collision when on two separate occasions Cason applied the brakes in an effort to stop the automobile and the brakes locked causing the automobile to swerve suddenly and violently to the left; that thereafter while Cason was driving the automobile on the return journey to Bowyer's office and storeroom and while traveling at about 35 miles per hour a bus turned out from a stop on Bay Street extension and that Cason applied brakes suddenly to the automobile in an effort to prevent a collision with the rear of the bus when the left front wheel of the automobile became locked with the result that the automobile swerved suddenly into the left lane of Bay Street extension thus colliding with the left front side of the plaintiff's automobile being driven by the plaintiff's wife; that the plaintiff's wife was driving at a speed of about 25 miles per hour and could not avoid such collision; that the defective brakes caused the collision with the plaintiff's automobile and but for such defective brakes the collision would not have occurred; that by reason of such collision plaintiff was damaged in enumerated particulars; that defendant Bowyer was negligent: in delivering to Cason for driving upon the streets of the City of Savannah a Dodge automobile with defective brakes; in delivering to Cason the automobile without exercising any care whatever to ascertain the experience and ability of Cason to drive the automobile on the streets of the City of Savannah; in the effort of Cason to stop the automobile with the sudden application of the brakes and thereby causing the left front wheel of the automobile to lock swerving the automobile into the left side of the plaintiff's automobile; in having in its possession for resale an automobile with defective brakes and in delivering the automobile to a driver who did not have ability to operate the car without inflicting damage upon others; in driving the automobile at a reckless speed of 35 miles per hour thus necessitating the application of brakes in an effort to prevent striking the bus; that each and every act of negligence alleged resulted from the defective brakes which were the sole and proximate cause of the collision between the Dodge automobile and the plaintiff's automobile. Count two as amended was substantially the same as count one except as follows: count two as amended contained the additional allegations: that the brakes on the Dodge automobile when delivered to Cason were defective, in that when pressure was applied to the brake pedal the brakes would lock at the left front wheel causing the automobile to swerve to its left; that the defect was unknown to Cason when the automobile was delivered to him; that the dangerous and defective condition of the brakes was well known to defendant Bowyer at the time he put the automobile in the hands of Cason to be driven by him on the public streets and highways. Count two did not contain the allegations of count one that Cason knew of the defective brakes by reason of two incidents occurring prior to the accident; and that the defendant Cason was negligent in driving the Dodge automobile at a reckless speed of 35 miles per hour thus necessitating the application of brakes in an effort to prevent striking the bus. The defendant H. L. Bowyer Jr. excepts to the overruling of his general and special demurrer to the petition as amended.
1. The court did not err in overruling the general demurrer to count one. The relationship between the defendants was that of bailor and bailee. Harris v. Whitehall Chevrolet Co., 55 Ga. App. 130 ( 189 S.E. 392). The defendant Bowyer contends that the operating of the automobile by the defendant Cason after Cason acquired knowledge that the brakes were defective, broke the connection between Bowyer's alleged negligence and the injury, and that Cason's negligence was a superseding and the sole proximate cause of the injuries. We do not agree with this contention. It is alleged that Bowyer had actual knowledge of the defective brakes (see Holt v. Eastern Motor Co., 65 Ga. App. 502, 15 S.E.2d 895), and it necessarily follows that Bowyer anticipated that Cason would operate the vehicle with defective brakes. Williams v. Grier, 196 Ga. 327 ( 26 S.E.2d 698). It cannot be said as a matter of law that Cason's operating the automobile with knowledge of the defective brakes was the sole proximate cause of the injuries. The case of McDaniel v. Jones, 58 Ga. App. 495 ( 199 S.E. 233) is distinguishable from this case in that the driver in that case was guilty of such flagrant and gross negligence as to render it the sole and proximate cause. Construing the petition against the plaintiff, as finally amended it charges as the sole proximate cause the furnishing of the automobile to Cason with knowledge of the defective brakes. However, the plaintiff would be entitled to recover if a jury finds that Bowyer's negligence combined with Cason's to constitute a contributing proximate cause, and that the negligence of Cason did not intervene so as to make it the preponderating cause. Callahan v. Cofield, 61 Ga. App. 780 ( 7 S.E.2d 592). Whether under the circumstances Cason should have desisted from operating the automobile after discovering the condition of the brakes, and whether his failure to do so was such a failure to exercise ordinary care as would make his act in continuing to operate the automobile with knowledge of the defective brakes the preponderating cause of the injuries is a question for a jury and cannot be determined as a matter of law under the allegations of the petition as amended.
2. The court did not err in overruling the general demurrer to count two. This count alleges a stronger case than count one in that as amended no negligence is alleged against Cason, the driver of the defendant Bowyer's automobile. No knowledge of the defective brakes is charged to Cason and the furnishing of the automobile with knowledge of the defective brakes is alleged to be the sole proximate cause of the injuries. This count makes a plain jury question on the allegations made.
There is no insistence on the exceptions to the overruling of the special demurrers.
The court did not err in overruling the general demurrer to the two counts of the petition.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.