Opinion
38763.
DECIDED APRIL 28, 1961. REHEARING DENIED MAY 15, 1961.
Action for damages. Fulton Superior Court. Before Judge Alverson.
Hurt, Gaines, Baird, Peek Peabody, Joe C. Freeman, Jr., W. Neal Baird, for plaintiffs in error.
McFarland Cooper, Martin McFarland, contra.
1. The petition was not subject to general demurrer in that it did not allege that the defendant's alleged conduct constituted the violation of a duty owed by the defendant to the plaintiff under the facts alleged.
2. (a) The petition was not subject to general demurrer in that it failed to allege that the acts of the defendant's servants were done within the scope of their employment, (b) or because it showed on its face that the plaintiff was barred by his own negligence.
3. The evidence did not demand a finding for the defendant in any and all events.
DECIDED APRIL 28, 1961 — REHEARING DENIED MAY 15, 1961.
Dr. Robert P. Shinall sued Capital Automobile Co. for damages for personal injuries alleged to have been caused by the negligence of the defendant. With reference to the injuries and the alleged negligence of the defendant, the petition, as amended, alleged as follows: "3. For many years, the company has been a distributor of Cadillac automobiles, selling and servicing both new and used Cadillacs, and trading in used cars in connection with the sale of new Cadillacs. 4. In the course of its business, the company has, for many years, solicited service and repair work upon Cadillac automobiles, and has held itself out to the public as employing expert mechanics and service personnel, indeed skilled and qualified in regard to the mechanical condition and operation of Cadillacs. 5. At the same time, the company has solicited trade-in of used cars upon the sale of new Cadillacs, and has held itself out to the public as employing in its new car sales department and in its used car sales department and as its appraisers, personnel thoroughly familiar with the qualities, characteristics and operation of Cadillacs. 6. The company has for many years held itself out to the public as a highly reputable and reliable dealer, whose sales managers and salesmen may be relied upon. 7. On February 24, 1958, the new car sales department of the company was in charge of Mr. Roy Roberts, new car sales manager, by proper authority of the company. 8. At that time, Mr. Randy Gibson was a salesman in the employ of the company. 9. One Mr. Adams was then an appraiser in the employ of the company. 10. At the same time, Nathaniel Brown was a regular employee of the company. 11. In February, 1956, Dr. Shinall purchased from Capital Automobile Co. a new 1956 Cadillac four-door 60 special sedan. He paid the purchase price in full. 12. At the time of that sale, the company represented to Dr. Shinall that the particular automobile was an excellent automobile, in good condition, and safe for him to operate. 13. Thereafter at frequent intervals the electrical system of that car became defective in its operation. The electrically operated heater, windows, air conditioning and starter failed to function properly. Electric fuses and bulbs burned out. Prior to February 24, 1958, frequent repairs were made upon the vehicle at Capital Automobile, at the expense of Dr. Shinall. Nevertheless the electrical system of the Cadillac continued to give difficulty. 14. In May, 1957, because of those difficulties in the electrical system of the vehicle, a factory representative from the manufacturer went over the entire electrical system of this Cadillac. This examination occurred at the place of business of Capital Automobile Company in Atlanta. 15. After these efforts by Dr. Shinall to obtain correction of the difficulties with the electrical system of the car, it continued to give further trouble from time to time. The starter would fail to work about ten percent of the time. 16. On February 24, 1958, in the afternoon, Dr. Shinall went to Capital Automobile Company, at its place of business in Atlanta, and that company, acting through Mr. Roy Roberts, Mr. Randy Gibson and Mr. Adams, attempted to induce and persuade Dr. Shinall to trade in that Cadillac upon a new one. The company had a pecuniary interest in maintaining his good will, as a past customer who had purchased a new car from the company and still owned it, and as a prospective customer for the purchase of a new car from the company, and as a service customer who had often patronized the service department of the company. 17. Upon being told on February 24, 1958, by Dr. Shinall that the starter of that 1956 Cadillac would occasionally fail to work, Capital Automobile Company undertook and assumed to show Dr. Shinall how he could start that 1956 Cadillac when the starter failed to work. This was done in the following manner: The Company, speaking through Mr. Roy Roberts, new car sales manager, suggested that employee Nathaniel Brown show Dr. Shinall how to start the car with the screw driver, in case the car went dead while he was out making a call. Furnishing such instruction and information to him was customer service, the promotion of good will and satisfaction among customers, and the promotion of the company's sales and service business. The company, acting in this manner through Mr. Roberts, Mr. Gibson and Nathaniel Brown, showed Dr. Shinall and demonstrated to him how to start the car by placing the metal shaft of a screw driver in contact with the terminals of the starter in Dr. Shinall's 1956 Cadillac. In that demonstration, the handle of the screw driver was held in the hands of Nathaniel Brown and its metal shaft was placed in contact with the electric terminals of the starter. The company, first through Mr. Roberts and then through Mr. Gibson, assured Dr. Shinall that there was no danger in this procedure, and through Nathaniel Brown, in the presence of Mr. Roberts and Mr. Gibson and with their full knowledge, acquiescence and at least tacit concurrence and approval, stated to Dr. Shinall that the only trouble that starting the car that way (by the screw driver) could cause Dr. Shinall was if the car had been running and the exhaust manifold was hot, his hand might be burned if it touched the heated exhaust manifold. Providing this demonstration and furnishing all this instruction and information to Dr. Shinall was undertaken and performed by Capital Automobile Company as customer service to Dr. Shinall as its customer in the purchase of Cadillacs and as a patron of the service department of the Capital Automobile Company. This customer service was rendered by the company in promoting its sales and service business, with the purposes of inducing Dr. Shinall and others to patronize Capital Automobile Company. Capital Automobile Company knew and intended that Dr. Shinall would rely on it and on said demonstration and instruction and assurance and start his Cadillac as thus indicated. 18. The starting of a 1956 Cadillac by placing the metal shaft of a screw driver in contact with the electric terminals of the starter, while the screw driver is held by its handle, when the person starting the engine in this way is not a mechanic, is not good practice in the operation of a 1956 Cadillac. 19. Capital Automobile Company knew that that method of starting the engine was not good practice in the operation of a 1956 Cadillac. 20. The method of starting the engine of a 1956 Cadillac involves danger of severe electric shock to the person using that method, if he is not a mechanic. 21. The company knew of this danger. 22. The electrical system of the 1956 Cadillac is physically and electrically complex. It will at times have high voltage of several thousand volts capable of producing severe shock. 23. These facts were then well known to Capital Automobile Company. 24. In the exercise of ordinary care, all these facts in regard to the danger of that method of starting the engine by a screw driver, and the danger of shock to the person using it, and the characteristics of the 1956 Cadillac electrical system, were known or in the exercise of ordinary care should have been known by each of the following persons: (a) Mr. Roy Roberts; (b) Mr. Randy Gibson; (c) Mr. Adams, the appraiser; (d) Nathaniel Brown. 25. Capital Automobile Company knew or in the exercise of ordinary care should have known that Dr. Shinall was a doctor and not a mechanic. 26. It is bad practice for a Cadillac distributor or dealer to give to the owner of a 1956 Cadillac, if he is not known to be a mechanic, the instruction that he can start the engine by placing the metal shaft of a screw driver in contact with the electric terminals of the starter, while the screw driver is held by the handle, and that there is no danger in starting the car in that way except that if the car has been running and the exhaust manifold is hot, the hand holding the screw driver may be burned if it touches the heated exhaust manifold. 27. Dr. Shinall was inexperienced and did not know the danger of severe shock from starting his Cadillac in that manner. Dr. Shinall, not being a mechanic, relied upon the skill, knowledge and integrity of the company, and upon those instructions given to him by the company, believing them to be true and correct, and he accepted and followed those instructions when his starter failed to work on the morning of February 25, 1958. The car had not been used that morning. Its exhaust manifold was not hot. The car was parked on the street adjacent to his home. When he followed the instructions for that method of starting the engine at about 8:15 that morning, the electric current from the Cadillac administered a severe shock. As the electric current coursed through his body, he could not free himself. After a period of time that cannot be stated exactly, he succeeded in calling to his wife for help. 34. The injuries and damages to Dr. Shinall were the direct and proximate results of the following acts of negligence of Capital Automobile Company: (a) Giving to Dr. Shinall, who was not a mechanic, the instruction that when the starter of his Cadillac would not work, the method of starting the engine was to place the metal shaft of a screw driver in contact with the electric terminals of the starter while holding the screw driver by the handle, when in fact such a method was a bad practice and created a hazard of electric shock. (b) Telling Dr. Shinall that there was no danger in starting his Cadillac in that way with a screw driver, except that if the car had been running and the exhaust manifold was hot, his hand might be burned if it touched the heated exhaust manifold; that statement being incorrect in that there was danger of electric shock. (c) Failing to warn Dr. Shinall, when talking to him about starting the engine of his Cadillac by placing the metal shaft of a screw driver against the electric terminals of the starter, that that method was dangerous and might result in a severe electric shock. (d) Failing to warn Dr. Shinall, when demonstrating to him a method of starting the engine of his Cadillac by placing the metal shaft of a screw driver against the electric terminals of the starter, that the method was a bad practice for a man who was not a mechanic. (e) Failing to ascertain whether Dr. Shinall was a mechanic before giving his instructions that when the starter of his Cadillac would not work, the way for him to start the engine was to place the metal shaft of a screw driver in contact with the electric terminals of the starter while holding the screw driver by the handle, when in fact such a method was a bad practice and created a hazard of electric shock. (f) Failing to ascertain whether Dr. Shinall was a mechanic before instructing him that there was no danger in starting his Cadillac in that way with a screw driver." The defendant filed its answer in which it denied all of the allegations of the petition except paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 11 and 12 which were admitted. The exceptions here are to the overruling of the defendant's motion to dismiss in the nature of a general demurrer and the overruling of the defendant's motion for a judgment notwithstanding the mistrial.
1. On the question of the overruling the motion to dismiss the action, the contention by Capital Automobile Company that the petition fails to show that it owed a duty to the plaintiff is without merit. While there is no duty on the part of the automobile company to give such instructions as are alleged in the petition, we think that under the circumstances alleged such a relationship existed between the parties as would make it a duty on the part of the automobile company to exercise ordinary care in warning the plaintiff against the hazard incurred in carrying out the instructions, which Capital chose to give. This duty to warn does not arise out of the duty to give instructions. It arises out of the giving of the instructions under circumstances where reliance upon the instructions by the receiver would normally be expected by one giving the instructions. Chitty v. Horne-Wilson, Inc., 92 Ga. App. 716 ( 89 S.E.2d 816). In this type of case no privity of contract between the parties is necessary. The Restatement of the Law of Torts touches very closely on this question. While it is to be noted that the Restatement does not cover the instant situation completely, we think that all that is necessary to give rise to the duty to warn is the relationship of the parties and the undertaking of the giving of instructions. Restatement of the Law of Torts reads as follows: "Section 311, Negligence, Misrepresentation. Involving Threat of Bodily Harm — (1) One a part of whose business or profession it is to give information upon which the bodily security of others depends and who in his business or professional capacity gives false information to another is subject to liability for bodily harm caused by the action taken in reliance upon such information by the recipient or by a third person to whom the actor should expect the information to be communicated if the actor, although believing the information to be accurate, has failed to exercise reasonable care (a) to ascertain its accuracy, or (b) in his choice of the language in which it is given. (2) The actor is subject to liability under the statement in Subsection (1) not only to the recipient or to a third person who expectably acts in reliance upon it but also to such third persons as the actors should expect to be put in peril by the action taken." The circumstances alleged in this case which give rise to the duty to warn where instructions are actually given voluntarily and without any duty to do so are that the plaintiff had purchased his Cadillac automobile from the defendant, that the plaintiff was a prospect for the purchase of a new Cadillac, that the probability was that the correcting of the defect in the starter to the plaintiff's automobile was a step toward satisfying the plaintiff, either generally or in order to sell him another automobile, and that the plaintiff was at the very time negotiating with the defendant for the purchase of a new Cadillac.
2. The contention by the plaintiff in error that the petition fails to allege that the acts of the defendant's servants were committed within the scope of employment is without merit. The petition alleged that the defendant, acting through the named employees, furnished the instructions, demonstration, information and assurances of safety. Such an allegation is sufficient to allege that the agents were acting within the scope of their authority. Chamberlin Co. of America v. Mays, 92 Ga. App. 173 ( 88 S.E.2d 176) and cit. The contention by the plaintiff in error that the employee, Nathaniel Brown, was not such a person as was held out by the defendant to be a mechanical expert is without merit for the reason that the petition alleged that the company, acting through Mr. Roy Roberts, Mr. Randy Gibson and Nathaniel Brown showed Dr. Shinall a method of starting that car by placing the metal shaft of a screw driver in contact with the electric terminals of the starter, while the screw driver was held by the handle, and told Dr. Shinall there was no danger in starting the car in that way, except if the car had been running and the exhaust manifold was hot, his hand might be burned if it touched the heated exhaust manifold. The petition further alleged that the new car sales department of the defendant was in charge of Mr. Roy Roberts; that at that time Mr. Randy Gibson was a salesman in the employ of the defendant; that one Mr. Adams was then an appraiser in the employ of the defendant, and that Nathaniel Brown was a regular employee of the defendant. It thus appears that the instructions were not alleged to have been given by a mere regular employee, but by other officers of the defendant company who a jury might find had the apparent authority to give the instructions to the plaintiff, together with the limited warning. There is nothing in the petition which indicates that the plaintiff knew of the danger in carrying out the instructions given to him and that he, therefore, assumed the risk of carrying out the instructions. The petition does not show on its face that the plaintiff did not follow the instructions received by him. It is consistent with the allegations of the petition that the plaintiff followed the instructions and was injured by inadvertently causing the screw driver to come in contact with a high voltage wire, concerning which he had had no warning.
3. As to the motion for judgment notwithstanding the mistrial, we think the jury was authorized to find that the plaintiff proved his case as laid. It is contended by Capital Automobile Co. that the plaintiff's testimony, construed against him, shows that the plaintiff himself requested Nathaniel Brown to show him how to start the motor. The contention is based on an allegation in the petition that the defendant, speaking through Mr. Roy Roberts, suggested that Nathaniel Brown show the plaintiff how to start the car with the screw driver, and on the following question and answer: "Q. Did he start it one time and then you ask him to show you how to start it and then he started it again? A. I don't recall." This situation does not demand the consequence claimed by the plaintiff in error for the reason that there are two subject matters involved in the question. One is whether Nathaniel Brown started the engine once before he started it again to show the plaintiff how to start it. The other is whether Nathaniel Brown started it in order to show the plaintiff how to do it. The plaintiff testified that he did not remember whether or not Nathaniel Brown had started the car previously to the time when Brown started it to show the plaintiff how to start the motor. We do not think that the contention of the plaintiff in error that this testimony of the plaintiff demanded a finding against him on the ground that his testimony was self-contradictory, vague and equivocal is meritorious. While the evidence of the plaintiff was contradicted by prior statements and depositions given by him, this is a matter of impeachment which is a question for the jury and not for this court to decide. The plaintiff in error also contends that the evidence shows that the plaintiff is barred by his own negligence. The contention is that the plaintiff, on the occasion when he was shocked severely, made an initial effort to start the car, as instructed, and that as he endeavored to do so he received a slight shock, which should have put him on notice of the danger involved. This contention is without merit because the jury could construe the testimony of the plaintiff to mean that when he received the slight shock he was not actually attempting to start the car according to instructions given. The plaintiff testified that prior to endeavoring to start the car by the instructions given, he felt a tingle, as of static electricity, which one experiences when one touches the door of a car. As this case may be tried again, we think it proper to say that the evidence did not show that the employee, Nathaniel Brown, was engaged in the kind of activities which would have authorized the plaintiff to believe that he was a mechanic, or a mechanic's helper, or who for any other reason shown by the evidence, had authority to give the alleged instructions individually and not under the direction of any officer higher in authority. Unless the jury believe that the instructions were authorized or acquiesced in by the officers the plaintiff would not be entitled to recover. The evidence authorized the jury to find that the instructions given under the circumstances alleged, with only the limited warning, constituted negligence.
The court did not err in overruling the motion to dismiss the action or in overruling the motion for a judgment notwithstanding the mistrial.
Judgments affirmed. Nichols and Bell, JJ., concur.