Opinion
42542, 42543, 42544.
ARGUED JANUARY 10, 1967.
DECIDED JANUARY 25, 1967. REHEARING DENIED FEBRUARY 13, 1967.
Action for damages. Chatham Superior Court. Before Judge Harrison.
Hitch, Miller, Beckmann Simpson, R. M. Hitch, Crawford, Leeb Calhoun, John R. Calhoun, for appellants.
Neely, Freeman Hawkins, J. Edgar Neely, Pierce, Ranitz Lee, Kennedy Sognier, Morris Morris, Bouhan, Lawrence, Williams Levy, Frank W. Seiler, Hartridge Hartridge, Julian Hartridge, Jr., for appellees.
The trial court did not err in sustaining the demurrers of each defendant and thereafter dismissing the petitions.
ARGUED JANUARY 10, 1967 — DECIDED JANUARY 25, 1967 — REHEARING DENIED FEBRUARY 13, 1967.
In these three cases the plaintiffs sued the manufacturer, General Motors Corporation, the used car dealer, Helton's Inc., and the repairman, James Kea, for alleged concurring negligence resulting in personal injuries to the Glovers and the death of their son when one William Butler, Jr., son of the owner of a 1963 Chevrolet which he had purchased from Helton's Inc., was unable to reduce the speed of the automobile which he was operating due to the fact that his accelerator stuck in an open position, and crashed into the rear of the car in which the Glovers were traveling. The trial court sustained the general demurrers of each defendant and dismissed the petitions.
Even as against general demurrer, the negligence alleged must be shown to bear a proximate causal relation to the injury or it is not actionable negligence as to the plaintiff. McKinney v. Burke, 108 Ga. App. 501 ( 133 S.E.2d 383); McClure v. Union Lumber Co., 89 Ga. App. 424 ( 79 S.E.2d 412). Where, as here, the plaintiff undertake to impose liability for the malfunction of the accelerator pedal, which is definitely alleged as the sole cause of the injuries, on three separate and distinct entities, the facts stated must, as against the general demurrers of each, be sufficient to show that the negligence of the demurrant entered into and was an integral part of the causative force. The two-count petitions allege generally that the manufacturer was negligent in improperly installing the accelerator linkage in a reverse position approximately 2 1/4 inches out of alignment which caused the apparatus to strike the metal coil housing, failing to wrap the coil wires in a single conduit, "failing to provide a sufficient degree of permanency and stability in the location of said wires that would have prevented independent garage mechanics from allowing the wires to interfere with the operation of the accelerator apparatus," and positioning the harness so that the wires led from it in a loose and dangling fashion so that "the cotter key could become entangled with said wire when the accelerator was in open position. . . Such a realignment by mechanics working in this sensitive area is or should have been known by defendant General Motors . . . and was as to said defendant a reasonably foreseeable happening."
It is then alleged that prior to selling the secondhand automobile to Butler the defendant used car dealer took it to Kea, a repairman, to replace a piston ring in the engine block and Kea removed the ignition coil wires from their "proper but insecure harness," negligently failed to replace them, and allowed them to hang loose in the operation area of the accelerator. General Motors and Helton's, Inc., were both negligent in failing to inspect and discover these defects.
Nowhere is it alleged that the negligent installation by General Motors of the accelerator linkage in a reverse position or out of alignment caused the accelerator to malfunction. Nowhere is it alleged that the negligence of Kea in failing to replace the wires in their proper harness caused the wires to become entangled with the accelerator mechanism or in any other way prevented it from functioning properly. Nothing in the petition indicates that if the accelerator linkage had not been reversed, or if the wires had been properly replaced in the housing, either or both, the accelerator pedal would have functioned any differently. The only allegation touching on this point appears by amendment in Count 2 where it is stated that the cotter key could become entangled with a wire leading to the ignition coil where there was a reverse realignment when the accelerator was in open position. It was never stated that the wires did in fact become entangled with the cotter key or linkage, or which, if any, of the other enumerated acts of negligence cause the accelerator to stick in its open position. Each separate defendant, accordingly, is correct in urging that under these facts its own negligence did not necessarily contribute to whatever state of facts caused the accelerator to malfunction.
It is true, as stated in King Hardware Co. v. Ennis, 39 Ga. App. 355 (5) ( 147 S.E. 119) that mechanical defects need not be described with minute precision. Here the defects are minutely described but indubitably their causative relation to the malfunction is not made to appear. "Specifications of negligence do not constitute the entire pleading and the fact that the petition may contain general allegation of negligence which are good as against a general demurrer does not demand the conclusion, or necessarily justify the conclusion, that the petition as a whole sets forth a cause of action. Negligence alone does not give a right of action to an injured person against the negligent person unless the negligence be the proximate cause of the injury and damage. Western A. R. v. Frazier, 66 Ga. App. 275 ( 18 S.E.2d 45); Kleinberg v. Lyons, 39 Ga. App. 774 ( 148 S.E. 535); Doby v. Florence Constr. Co., 71 Ga. App. 888 ( 32 S.E.2d 527); Stallings v. Ga. Power Co., 67 Ga. App. 435 ( 20 S.E.2d 776); Western A. R. v. Crawford, 47 Ga. App. 591 ( 170 S.E. 824); Queen v. Patent Scaffolding Co., 46 Ga. App. 364 ( 167 S.E. 789); Williams v. Southern R. Co., 76 Ga. App. 559 ( 46 S.E.2d 593); Gallovitch v. Ellis, 55 Ga. App. 780 ( 191 S.E. 384); Powell v. Waters, 55 Ga. App. 307 ( 190 S.E. 615); Walters v. Berry Schools, 40 Ga. App. 751 ( 151 S.E. 544)." Davis v. Aiken, 111 Ga. App. 505, 508 ( 142 S.E.2d 112). As stated in the same case, allegations of proximate cause are mere conclusions which must be disregarded when the facts stated fail to support them. See to the same effect Ford v. S. A. Lynch Corp., 79 Ga. App. 481 ( 54 S.E.2d 320); Dowling v. Southwell, 95 Ga. App. 29 ( 96 S.E.2d 903); Belch v. Sprayberry, 97 Ga. App. 47 ( 101 S.E.2d 870).
The general demurrers were properly sustained for the reason that, as to each particular demurrant, it is not shown that the negligence of that defendant contributed to cause the defective condition of the automobile inflicting the injuries.
Judgments affirmed. Frankum, P. J., and Quillian, J., concur.