Harley v. General Motors Corp.

Full title: HARLEY, by Next Friend v. GENERAL MOTORS CORPORATION et al

Court: Court of Appeals of Georgia

Date published: Mar 19, 1958

97 Ga. App. 348 (Ga. Ct. App. 1958)

103 S.E.2d 191

Opinion

37041.

DECIDED MARCH 19, 1958.

Action for damages. Wilkes Superior Court. Before Judge Norman. December 2, 1957.

Walton Hardin, Randall Evans, Jr., for plaintiff in error.

Howell C. Erwin, Clement E. Sutton, Erwin, Nix, Birchmore Epting, contra.

1. The petition does not show that the plaintiff's injuries resulted from a latent defect existing in an automobile manufactured by the defendant General Motors Corporation and, therefore, no actionable negligence is shown as to this defendant.

2. The court erred in sustaining the special demurrers of the defendant George O. Walton, trading as Walton Pontiac Company, and in striking the paragraphs demurred to from the petition.

DECIDED MARCH 19, 1958.

Sterling Harley, by next friend, sued General Motors Corporation and George O. Walton, trading as Walton Pontiac Company, for injuries allegedly caused by the defendants' negligence. The plaintiff's petition in substance alleged: During 1955, General Motors Corporation manufactured a 1956 model Pontiac automobile and delivered it to George Walton, trading as Walton Pontiac Company, for sale to the public and for use on the public highways; defendant General Motors Corporation defectively manufactured, constructed and assembled the accelerator on said automobile, and the defective condition was in existence at the time the automobile was delivered by General Motors to Walton Pontiac Company; the automobile was so defectively constructed that the metal rod which connected the accelerator pedal with the carburetor would rub against the floor board at times causing the accelerator pedal to stick in an open position causing the automobile to run at excessive speeds; this condition constituted a latent defect obvious only to persons with scientific knowledge as to the proper manufacture, construction and assembly of the vehicle, which knowledge was possessed by both defendants but not by the plaintiff, his father, or his mother; General Motors Corporation failed to properly inspect the automobile before making delivery to Walton Pontiac Company, and, if a proper inspection had been made, the latent defect would have been disclosed to it prior to such delivery; Walton Pontiac Company did not make a proper check-up and inspection of the vehicle when delivered to it by General Motors Corporation although the policy and operating agreement between General Motors Corporation and Walton Pontiac Company was that General Motors Corporation would make an inspection and Walton Pontiac Company would likewise make a thorough check-up and inspection in every part before delivering a new automobile to a customer, and an allowance or credit was made by General Motors Corporation as for servicing the automobile and giving it a complete check-up when the automobile had traveled 2,000 miles; on December 24, 1955, John Harley, the plaintiff's father, purchased the new Pontiac automobile containing the defective accelerator rod from Walton Pontiac Company and took delivery thereof; the automobile, because of such defect, was in an unsafe condition, and the defect was such as to cause the automobile to be imminently dangerous for use as a motor vehicle on the public highways and to be a hazard to the life and safety of its occupants and other members of the traveling public on the highways; the plaintiff's father used the automobile extensively before the mishap, and during such operation the accelerator at times would stick, causing the speed of the automobile to be much too great for safety, and with some difficulty on each time the accelerator stuck the father succeeded in kicking the foot pedal until the accelerator returned to its normal position; the father returned the automobile to Walton Pontiac Company and notified it of the defect and requested that it be repaired and that the automobile be given a general check-up and placed in a safe condition for driving; Walton Pontiac Company took the automobile in charge and thereafter delivered it to the father, representing that the automobile had been fully checked, that the defective condition of the accelerator had been repaired and that it was in a proper and safe condition for driving; the check-up was made at the 2,000-mile point as to mileage on the automobile; thereafter, John Harley, the father, returned to his post in the United States Army, leaving the automobile with his wife for her use; on February 15, 1956, Mrs. Juanita Harley, then being pregnant with the plaintiff, was driving the automobile along a public highway when the defective accelerator stuck, increasing the speed of the automobile and causing it to run at an unusual, rapid and dangerous rate of speed and at a speed much too fast for Mrs. Harley to maintain control of the automobile, and in spite of all her efforts to release the accelerator, she was unable to do so and because of such unusually high speed she lost control of the automobile causing it to leave the highway and collide with certain posts and a building causing injuries to Mrs. Juanita Harley and her unborn child, now the plaintiff; the cause of plaintiff's injuries was the concurring negligence on the part of both defendants and the negligence of each defendant concurred with the negligence of the other defendant and they were so closely related that the injuries would not have been sustained except for the negligence of each defendant.

The petition contained the following specifications of negligence in substance: As to General Motors Corporation, in defectively manufacturing the automobile with a defective accelerator and in failing to inspect and repair the same before delivery to Walton Pontiac Company. As to George O. Walton, trading as Walton Pontiac Company, in selling and delivering to plaintiff's father a new automobile with a defective accelerator and in accepting the vehicle for repair of the defect and failing to make the agreed proper and necessary repairs.

Each defendant separately filed general and special demurrers to the petition. The court sustained the general demurrer of General Motors Corporation and dismissed the action as to that defendant. The court overruled the general demurrer of the defendant George Walton, trading as Walton Pontiac Company, and sustained certain special demurrers of that defendant with leave to amend. On failure of the plaintiff to amend, the court sustained the special demurrers above referred to and struck certain allegations from the plaintiff's petition. The plaintiff excepts to these rulings.

FELTON, Chief Judge.

1. The gist of the action as to General Motors Corporation is that General Motors was negligent in manufacturing and causing to be sold a machine containing a latent defect which rendered the machine dangerous when operated. A latent defect is one which could not be discovered by the purchaser, user or injured party by the exercise of ordinary care. By its very nature a latent defect ceases to be latent when it is discovered. In order to recover under the theory of law relied on by the plaintiff here, the injury sued for must have occurred while the defect was still latent. In the instant case, the plaintiff's father discovered the defective condition of the accelerator rod before it had caused any injury and at the discovery thereof, the defective condition of the accelerator rod ceased to be a latent defect. Once the defect was discovered and the dangerous condition of the defective machine became apparent, that discovery insulated the manufacturer from any damages resulting from its manufacture of a latently defective machine. Upon discovery of the defect, the father took the automobile to the defendant Walton Pontiac Company for the purpose of having the defect repaired and corrected and Walton Pontiac Company returned the automobile to the father representing that the defect had been corrected and repaired. The plaintiff's injuries occurred subsequently; therefore, those injuries were not proximately caused by any negligence of General Motors Corporation in manufacturing a latently defective automobile but by the negligence, if any, of Walton Pontiac Company in failing to repair the defect.

It does not appear that in its attempt to correct the defect at the 2,000-mile check-up Walton Pontiac Company was acting as the agent of General Motors Corporation since the allegations relating to the relationship between General Motors Corporation and Walton Pontiac Company are as consistent with the relationship of independent contractor as they are with principal and agent. The case of J. C. Lewis Motor Co. v. Williams, 85 Ga. App. 538 ( 69 S.E.2d 816) is not applicable here. In that case it was alleged that the plaintiff and her husband did not know that the defect in the tractor rendered it dangerous to operate, whereas in the instant case, it is alleged that the defect in the automobile obviously rendered the automobile dangerous to operate.

2. The plaintiff in error excepts to the judgment sustaining the special demurrers of the defendant Walton Pontiac Company to paragraphs 11, 12, 17, 26, 27, 28(a) and 28(b) of the petition and striking these paragraphs. Paragraphs 11, 17, 28(a) and 28(b) were specially demurred to on the grounds that they showed a misjoinder of causes of action; paragraphs 28(a) and 28(b) were further specially demurred to on the ground that the allegations were relying on a breach of warranty rather than a tort action. These paragraphs were not subject to special demurrer on these grounds. Paragraph 17 of the petition was further specially demurred to on the ground that the paragraph referred to the latent defect in the automobile existing at the time of its manufacture and delivered to Walton Pontiac Company, and it was further alleged in paragraph 19 that this defect was discovered by the plaintiff's father and thereby ceased to be a latent defect, and therefore the allegations in paragraph 17 are inconsistent with the allegations in paragraph 19 of the petition. This special demurrer is without merit on the reasons assigned, because at the time referred to in paragraph 17, the defect had not been discovered and was truly a latent defect under the allegations.

Paragraphs 12, 26 and 27 were not specially demurred to. The defendant Walton Pontiac Company contends that these paragraphs were subject to that part of his special demurrers which stated "as well as other allegations in said petition [that] allege that the damages incurred by the plaintiff were due to a latent defect in the construction of the automobile sold to plaintiff's father." A special demurrer is a critic and must be specific and the defendant cannot by a "catch-all" special demurrer phrased generally reach numerous alleged defects appearing throughout the entire petition.

The court did not err in sustaining the general demurrer of the defendant General Motors Corporation and in dismissing the action as to that defendant.

The court erred in sustaining the special demurrers of the defendant Walton Pontiac Company and in striking the paragraphs referred to in the opinion.

Judgments affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.