Harris v. Whitehall Chevrolet Co.

Per Curiam. The ultimate question for determination is whether or not the court erred in sustaining the general demurrer of Whitehall Chevrolet Company to the petition as amended. Omitting some of its formal allegations, and some of the allegations deemed unnecessary in deciding the question at issue, the petition'brought by Mrs. J. J. Harris against Miss Frances Menge and Whitehall Chevrolet Company substantially alleges: “3. That . . defendants have injured and damaged petitioner in the sum of $25,000 by reason of the following facts: 4. That . . Whitehall Chevrolet Company, during all of the time or times hereinafter mentioned, . . was in the business of merchandising automobiles for pecuniary gain and profit, selling and demonstrating said automobiles from its place of business, known as 329 Whitehall Street, Atlanta, Georgia. 5. That on August 20, 1934, at — 131 — 12:30 p. m., petitioner was in the act of crossing Broad Street at Alabama, pursuant to the commission given by the street light, when defendant Menge, agent of. Whitehall Chevrolet Company, as will more fully hereafter appear, without warning, ran through a red light at the said intersection at Broad and Alabama Streets, and negligently, wantonly, and wilfully and maliciously, struck, knocked down, and dragged petitioner to petitioner’s physical injury and damage. 6. That . . defendant Menge did not sound any horn, gong, bell, or other warning device, or give petitioner any notice whatsoever of her intention to run south on Broad Street . . through and across the red light situated at the intersection of Broad and Alabama Streets. 7. That said automobile . . was owned by Whitehall Chevrolet Company, and by said company, through some of its servants, employees, or agents, held, owned, and operated, for the purpose of displaying, demonstrating, and selling the said automobile in the course of said defendant Whitehall Chevrolet Company’s usual course of business. 8. That as a result of the defendants’ negligence . . petition received” designated injuries. 9. Petitioner incurred an indebtedness of $600 for medical expenses. 10. Whitehall Chevrolet Company ordered and instructed defendant Menge to drive and operate said automobile over the streets of Atlanta pursuant to an attempt or plan of said company to sell said automobile, and said defendant Menge “at the time of the running over of petitioner aforesaid was driving said automobile pursuant to and under the instructions of . . Whitehall Chevrolet Company through some officer, or employee of said company, whose name is unknown to . . petitioner.” 11. That the brakes of said automobile were “in bad condition, bad repair, and inoperative at the time of said collision.” 12. That the horn of said automobile was “in bad condition, bad repair, and inoperative at the time of said collision. 13. That . . Whitehall Chevrolet Company had purchased said automobile from . . C. B. Grogan for resale a short time prior to the collision aforesaid, and said company at the time of said collision had not changed the registration of the license of ownership of said automobile. . . 14. That next immediately prior to the purchase of said automobile by the defendant company from said Grogan, said defendant company, by or through some of its officers, servants, agents, or employees, whose . . — 132 — names are to petitioner unknown, had given said automobile an inspection and appraisal, the which said inspection and appraisal disclosed or should have disclosed to said defendant company the state of mechanical repair of condition that said automobile was in, and that the brakes of said automobile were in bad condition and out of repair, and that the horn on said automobile would not blow. . . 15. That the defendant, Menge, was negligent” in specified respects. “16. The Whitehall Chevrolet Company was negligent in the following particulars: (a) in not maintaining the brakes on said automobile in a workable condition and in a state of good repair; (b) in not maintaining the horn or warning signal on said automobile in a workable condition or state of good repair; (c) in instructing defendant M'enge to operate said automobile around the City of Atlanta while same was in a state of bad repair in so far as the brakes and horn thereon were concerned; (d) in not repairing said automobile after the purchase of the same from said Grogan prior to any use thereof; (e) in not testing said automobile to ascertain its condition prior to said defendant company instructing defendant Menge to operate the same around the streets of Atlanta. 17. That both defendants in the exercise of ordinary care should have known that said automobile was in such a condition of bad repair as to require the fixing of the brakes and horn or warning signal prior to the operating of said automobile over the streets of Atlanta. 18. That petitioner’s said injuries . . are permanent. . . 19. That petitioner was and is free from fault or negligence.” In response to special demurrers of Whitehall Chevrolet Company, the plaintiff amended paragraph 5 of her petition by causing the latter part thereof to aver that Miss Menge, “ without warning, ran through a red light at the said intersection at Broad and Alabama Streets and negligently and grossly, and with great force running through said red light as aforesaid, struck, knocked down, and dragged petitioner to petitioner’s physical injury and damage.” In response to the demurrer of Whitehall Chevrolet Company the plaintiff also amended her petition by adding thereto the following paragraph, designated as 16A: “That at all of the . . times in said petition mentioned, said defendant Menge was the agent of defendant, Whitehall Chevrolet Company, and the negligence of said defendant company’s agent, Menge, as aforesaid and — 133 — in. the particulars in said petition set forth, and both of said defendants were and are jointly responsible for the negligent acts of defendant Menge in said petition set forth.” After the petition had been amended as'indicated, Whitehall Chevrolet Company renewed its original demurrer, and further demurred, (1) because “the petition as amended sets forth no cause of action against this defendant,” and (2) because the petition as amended “shows that the defendant Menge was not the agent of this defendant, but that the relationship of this defendant with the defendant Menge was that of bailor and bailee,” and for other reasons which, in view of the court’s ruling, need not be stated. The court’s judgment was as follows: “The plaintiff alleges that the Whitehall Chevrolet Company was engaged in the sale of automobiles, and had in its possession for sale an automobile referred to in the petition; that said defendant let the defendant, Frances Menge, drive said automobile ‘pursuant to an attempt or plan of said company to sell said automobile,’ and that at the time of the alleged , injuries the said Menge was ‘driving said automobile pursuant to and under the instructions of the defendant, Whitehall Chevrolet Company, through some officer or employee of said company, whose name is unknown to petitioner.’ By amendment filed March 3, 1936, in pursuance of an order of the court of February 19, 1936, sustaining special demurrers, the plaintiff alleged that ‘at all of the time and times in said petition mentioned, said defendant Menge was the agent of defendant Whitehall Chevrolet Company, and the negligence of said defendant company’s agent Menge, was the negligence of said company.’ A reasonable construction of the petition as amended shows that the defendant company was engaged in the sale of automobiles and permitted the defendant Menge to take the car in question from the place of business of defendant company for the purpose of ascertaining whether she would desire to purchase the car or another one like it; that no agent of the defendant company accompanied her; and that she drove said car as thus entrusted to her wherever her own pleasure directed- her to drive it; and that is the theory upon which the case was argued. Under these circumstances the court is of the opinion that the defendant Menge was, as to the defendant company, a bailee, and not the agent of the company. . . Wherefore the general demurrer to plaintiff’sj petition as amended is sustained and said case is hereby dismissed.” — 134 — The first contention of counsel for the defendant is that in passing on the judgment sustaining the general demurrer, this court should consider the plaintiff’s right to recover as being based solely on the theory that Miss Menge was the agent of the company, and should not consider the contention made in this court by counsel for the plaintiff that the petition sets out a cause of action against Whitehall Chevrolet Company because that company delivered to Miss Menge the automobile to be driven on the streets of Atlanta, when it knew, or in the exercise of ordinary care should have known, that said automobile was a dangerous instrumentality because its brakes and horn were “inoperative.” Our view is, that, notwithstanding any statement of the judge in the opinion rendered by him in reaching his judgment sustaining the general demurrer to the petition, to the effect that the case was argued in the trial court solely on the theory that the defendant was liable under the doctrine of principal and agent or respondeat superior, it is the duty of this court, in passing on the judgment of the trial court, to consider the entire petition as amended, including, of course, any theory of recovery therein. Many decisions hold that the relationship between a dealer and a prospective customer driving an automobile to test it out is that of bailor and bailee, and not that of principal and agent or master and servant. In Hamp v. Universal Auto Co., 173 Wash. 585 (24 Pac. (2d) 77), a case very similar to the one at bar, the court said: “The recital in the complaint that Mr. Allen [the prospective purchaser] was the agent and employee of the auto company was a mere conclusion, not the allegation of a fact or an inference that could reasonably be drawn from the facts pleaded, and was therefore not admitted by the demurrer. The fact that the owner of the automobile delivered it to Mr. Allen as a prospective purchaser does not justify the imputation to the owner of Allen’s negligence while driving it for demonstration purposes.” To sustain this conclusion, the court cited 2 Blashfield’s Cyclopedia of Automobile Law, 1323. See Simril v. Davis, 42 Ga. App. 277 (155 S. E. 790). Our view is that the petition does not set out a cause of action against Whitehall Chevrolet Company on the theory of principal and agent or respondeat superior. In 7-8 Huddy’s Cyclopedia of Automobile Law (9th ed.), 230, § 88, it is said: “The fact that an automobile was in want of repair and dangerous for driving, and its condition was known to the — 135 — owner, will charge' him with injuries caused by such defect, although the car is driven by a bailee or other person with his consent. . . But the owner can not be held liable where he had no knowledge of the defect, even if he should have known of it.” See Dickason v. Dickason, 84 Mont. 52 (274 Pac. 145). Conceding, but not deciding, that the petition as amended sufficiently alleges that the defects in the automobile were known to the Whitehall Chevrolet Company, the demurrer was properly sustained, because the petition as amended failed to allege that there was any causal connection between such defects and the alleged injuries. Quoting from Huddy’s Cyclopedia of Automobile Law, supra “The fact that the machine placed in the possession of a bailee is defective does not impose liability on the bailor for an injury which is not shown to have been a result of such defect.” Under the allegations of the petition the accident might have occurred as it did if the bailee had been supplied with a car properly equipped in every respect. There being no causal connection between the alleged negligence of the Whitehall Chevrolet Company in delivering to the bailee an automobile with a defective horn and defective brakes and the injuries to the plaintiff, the court did not err in sustaining the general demurrer. Judgment affirmed. Broyles, G. J., and Guerry, J., concur. MacIntyre, J., dissents.