*1 foregoing in the contract provision notwithstanding, carrier shall have control and possession, exclusive use the motor vehicle involved.” statute, the lessor Under who has so contracted is liable. no There has been novation of contract, for the parties contemplated performing of these services Gran- tham in the instance, first primary Grantham’s defense is that it is not liable for the tax because its contract is for furnishing making services as to which the available merely the vans was incidental. The affidavits nowhere state (which that Grantham has exclusive control it must have escape to tax liability) only but that Grantham “maintained supervision” continuous and that care, custody “the and con- trol of equipment is vested in . . subject Grantham . only to requirements of the Interstate Commerce Commis- sion.” control Ultimate was reserved to the carriers under the agreement. lease That agreement same lease listed the services performed by to be upon Grantham which Grantham now relies that show the carriers did not have control. from Grantham should collect the sales tax the carriers and remit to the consider it inequitable Revenue Commissioner. I assert, they to allow the for tax do purposes, carriers not have control of the vans when leases under which their rights and liabilities accrue such control reserve to them. they Whether choose to exercise it in fact or not is beside the point. long provision they may So as the is in the leases exercise it. unduly generous say may It seems that the carriers reserve control in their so as to leases, meet Interstate Commerce Com- mission requirements, and then control exercise fail thereby duty relieve to collect and Grantham remit the sales tax.
42163. GENERAL MOTORS CORPORATION
JENKINS, by Guardian, et al. al. JENKINS, by Guardian, 42164. et et al. DANIELS *2 20, 1966 Argued July 6, Decided December Byron B. John King Spalding, Kirbo, Attridge, H. & Charles Motors. for Staton, Jr., General C. Hiers, Spivey Horton, & William W.
Swift, Currie, McGhee for et al. Carlton, Daniels Carlton, Milton A. & Dendy, Florence Hewlett Ward, Cullen M. Thomas Odom, W. George Fryhofer, W. al. Jenkins et January The first in this case filed
Per Curiam. 23, 1963, was amended on 5, 1964, by striking its con June filing tents and petition. September rewritten 25, 1964, On the court sustained demurrers of both defendants and granted days amend; leave to this time was further order extended to 23, November 20, On November 1964. plaintiff again by striking amended pleadings filed and sub stituting another rewritten petition, to which demurrers ob jections were filed. Another amendment was added October objected which was to because, among other it reasons, was not filed prior to expiration of the time allowed for amendment by the court’s first order on demurrers as later extended. The contentions are that under the law of the case the stricken petition of 5, 1964, June failed to set forth a cause action; that the defect was not peti cured the rewritten *3 tion of November 1964, and that the of amendment Oc tober 20, 1965, final too late. A order entered came was overruling objections January these on 12, 1966, and also over ruling general sustaining special the and certain demurrers. by Manor, It is settled Vann, Northside Inc. v. Ga.
(133 32) that, SE2d a where demurrer is sustained with a days stated number of in may which an amendment be filed, and no such amendment is offered within the time limited, it (1) is the law of the original petition case that the failed to set a action, (2) out cause of and an amendment offered after nugatory. the time limited is Where, a however, material amendment is in subject fact and allowed filed to demurrer objection by within the time allowed order, the court’s and nothing original where in purports such order to dismiss the petition in praesenti, question the of petition’s the sufficiency opened is for a adjudication. fresh Perkins v. First Nat. Bank Atlanta, (7) (143 474). 221 Ga. being SE2d so, This petition again where the is prior any amended to ruling on petition demurrers filed to the as amended, may the court properly consider, passing in on sufficiency petition as a whole, amendments subsequently filed, plead- and if the may out a of action their final form set cause he
ings in
general demurrer. Bradshaw v.
overrule the renewed
properly
(49
Smith v.
169);
Bugg,
SE2d
Crawford,
App.
77 Ga.
(1)
49).
by
mean
this that
(133
We do not
SE
utterly
as
is so
lifeless that
there
petition
if the
first amended
might cure
nothing to
a later
the de
by,
amend
amendment
petition
materially
fact
fect;
where,
here, the
is in
but
as
enough
adjudication, then a sub
amended,
present
and does
it
factitiously
is not to be
disallowed where
sequent amendment
perfect
the cause
action
complete
does in fact tend to
bring
do
the case
already
out.
facts here
within
set
ruling
Hayes,
Simpson
in
441) plaintiff again attempted long after amend, the time out, just for amendment had run the situation was then though prior expira no had been as amendment offered sustaining of the time in the court’s order tion allowed par on a general demurrer, puts this case with Northside In case Inc., 298, supra. present the court Manor, along last properly considered the rewritten with amendment October 1965. brought vehicle is an automobile dealer
Where having repaired for the and the purpose its owner it owner fact that dealer the there is defect reveals vehicle, the failure of the dealer to discover correct done when could have so the exercise of ordi the defect he *4 liability, of unless nary care relieves the manufacturer the man might fail to should have foreseen that dealer discover ufucturer ordinary remedy by the exercise of and the defect care. The allegation make this fails to this one petition in case being. liability into Southern bring manufacturer’s would the (42 Webb, 395, 109); 59 LRA R. Co. v. Ga. 152 SE 116 (2) (see 2d, 2, Torts Yol. 452 com Law, of the Restatement § pages 489; “d” (2) at 488 under Sub- on Subsection ment
877
(a),
10;
“f” and illustration
see also
(2), “e”,
447
section
§
(b)
(e)).
Maytag
Arbogast,
App. 666,
v.
42
See
Ga.
Co.
(1) (157
recognizes
the rule that the
350), which
that
SE
667
might
inspect
dealer’s failure to
is not an
cause
be
knowledge
different
had
of the defective con
where the dealer
(103
Harley
v.
Motors,
dition.
General
97 Ga.
348
SE2d
(123
City
191);
King,
App. 46,
441);
Elrod v.
49
SE2d
105
(5th Cir.);
of
v.
F2d
Drazen v.
Couch,
Villa Rica
284
281
(R. I.)
(189
693);
Otis Elevator Co.
A2d
Ford Motor
v.
Co.
(Ky.),
510;
Atelier
&
E. I. DuPont de Nemours
310 SW2d
(73
Co. v. Ladner,
249); Rulane
Co.
221 Miss.
S2d
Gas
378
(56
Montgomery
689);
v.
Ford
Co.,&
eral Motors Corporation.
Is principal neg the manufacturer also as for any liable ligence agent failing remedy the dealer as to discover and suspension condition created the loose rear Nothing simple axle bolt? else appearing, statement that the wrongful agent act was committed the defendant’s or servant prosecution principal’s business and within the scope employment agency is sufficient to invoke respondeat special doctrine of superior, but where the facts pleader relationship principal which the claims that the agent out, precedence exists set these facts take are over the conclusory determining statement and will control in whether agency properly alleged. Conney an has been v. Atlantic Greyhound 3) (58 Corp., (1, In conclusory allegation addition to manufacturer, through agent dealer, committed all of its acts alleged against following latter, facts are set out: Gen- *5 manufacturing of automobiles is in the business
eral Motors dealers; the defendant through franchised for sale authorized a contract corporation entered into written dealer and the agent purpose for the making dealer an authorized service being contract a servicing products, the selling of GMC duty it was the dealer’s personal service contract under which investigate provide prompt service, and efficient receive 1,000- and make the inspect products before sale complaints, of inspection to, referred for the labor 'costs which mile above allegations These were by it is reimbursed the manufacturer. on the of which were demurrers, attacked numerous several relationship agency of were proposition that the statements pleader’s interpretation of a written conclusions from the drawn being pleaded, terms of the contract contract and that the agency relationship. alleged the facts failed to show an While only as recognize pleaded that a contract we rule of up duty, the violation which matter of inducement set gravamen pleaded action need not be with such is the of the of of specificity it itself the foundation the cause as where of nevertheless, it is obvious that determination action, and dealer relationship between the manufacturer whether the agent independent or that of contractors principal is that of instrument, and it from the written would must be determined incomplete based on the be useless to make determination petition instrument, where the when before allegations of the contrary “If from the might conclusion. court, demand pertinent it is obvious that there are allegations pleaded contract which are not provisions of the and material lie.” Gardner Consolidated calling for them will a demurrer App. 581, Similar Co., Loan &c. Ga. agreement to a dealer franchise were allegations agency as Harley Motors, 348, supra, General Ga. held in agency independent an or an con with equally consistent be allegations agency to the situation, and demurrers tractor overruling special erred in The trial court sustained. were attacking contract and those calling for the written demurrers conclusory as in nature. agency allegations liability of the dealer. This is consider next We v. Chevrolet Motor G.M.C., controlled Division Griffith (2) (125 525) it which was held: repairman original duty public an “A owes to use ordi nary making repairs endanger care so as not to property others his performance, when the *6 consequences of may such conduct be foreseen.” The trial court properly general overruled the demurrer of this defendant.
As to case 42163, special No. it was error to overrule de- 7(b) (d) (e) murrers 5, 6(c), (f) 8(c) (d) (e) 9(a) (h), (f), (d) 10(a) (b) (b) (e), (f), 11(a) 13(e) 14(a) (d), 12(d), (f), 15(d) (k) (c), (e) (g) (1) 17(d). remaining special and The demurrers properly special overruled, were but demurrer Paragraph numbered to of the 3 46 last amendment should have been sustained.
As to Case No. demurrer, special demur- rer to Paragraph 38, and special 27, 28, 20 demurrers 22, 23, 29 and Subparagraphs (b) (e) (f) Paragraph and were properly overruled. The trial court erred in overruling special 21, 25, 26, 31, 32, 33, demurrers and Subparagraphs (h) (k) (a), (d), (f), (g), Paragraph 45. remaining special The exception demurrers to is taken properly were overruled.
Judgments affirmed, part. in part; J., reversed in Felton, C. Bell, J., Jordan, P. Hall and Eberhardt, JJ., Frankum, concur. J., P. Deen, ruling Pannell and JJ., dissent Division 2. not Quillian, J., participating. Judge, concurring. Chief Speaking myself alone,
Felton, desire to call I attention to the fact that some of the conclusions interpretations of the dissenters do not mine. coincide with give will but one instance. The of Hatcher v. I case General Co., Electric 647), 112Ga. is said dis- authority contrary sent to be the conclusion reached majority. parts In case the distributor of General Electric’s knowledge had replaced parts no actual that the were defective dangerous. or charged The only distributor was con- with knowledge structive and therefore negligence General Electric’s require was held to be concurrent. The law does not actual knowledge part intervening on actor specific as to a knowledge aof enough if it has actual It
defect. have question and could or article in the vehicle condition ordinary care. the exercise of particular defect discovered the intervening proxi- dissenting. doctrine Judge, Deen, original usually applied, where arises, mate cause and is merely furnished itself, harmless in negligence, passive or static to effect the act of acts a condition on which a later itself caused intervening act would have harm, or where the negligence ex- original act of injury whether or not the R., P. it v. Atlanta & W. Thus, isted. in Stiles illegal of a third “independent, act was held that which it would injury and without producing thoúgh defendant, other even happened,” not have excused the Light Taylor v. Atlanta Gas category falls negligent. this In 709). Only the second where Co., injurious condition itself operates passive on a static act negligent author arise of whether the question does the *7 acti- foreseen that another would static condition should have arises the doc- harm, and thus vate the situation and cause majority in the anticipation foreseeability or discussed trine of opinion. danger- manufacturer created the negligence the of the
Here any activa- dangerous condition, without condition, ous and the negligence injured plaintiff. the The by any agency, tion other merely harm failed to not initiate the but of the dealer did case, therefore, falls under agency. This the harmful neutralize Georgia Power Judge in Co. by Jenkins the rule enunciated 688), as follows: “The App. 483, Kinard, 486 SE failing guard against to a third mere of of defendant act or omission the which specific or the defect intervening an not efficient injury will constitute caused the liability.” defendant from relieve the act which will (1) Restatement, 2d, Torts the which accords with This § 2, the failure of a in subsection third “Except as stated states: by to another threatened the prevent harm act to person to superseding not a cause of such conduct is negligent actor’s duty a person is under other . If the third harm. . subject to do so will him to action, his failure to take such that is concurrent with negligence, his which liability for own resulting harm he has failed for actor, of the duty does not relieve perform failure to his prevent; but his neg- of his liability of for the results own original actor ligence.” majority Restatement, from cited illustration
The except for the fact to this case opinion has no resemblance instances. As shown that a manufacturer is sued in both summary a of Ford Restatement, 2d, Appendix, Torts it is ALR Wagoner, Motor Tenn. Co. SW2d points that page The annotation at ALR out purchaser first of the automobile to have the failure danger him hood fixed when the informed manufacturer to repair any it relieved further the manufacturer offered duty purchaser toward future vendees from informed be- reasonably expected that could be everything cause it “has done in the hands the article is danger or defect while remove refusing purchaser act of that the conscious purchaser, regards danger would, or defect as the offer for removal of the pur- injury subsequent liability thereafter vendor’s an independent, efficient, constitute person, chaser or other third not foreseeable the vendor.” cause which was P. 382. liability party of a third annotation then discusses the (such danger or merely inspect
who failed to discover the has 384): (p. generally has and states “It been here), as the dealer supplier’s held that failure of manufacturer’s the existence of a hidden inspect for or to discover vendee operate to relieve the former defect in the article sold will person having or other third liability purchaser to a remote *8 Among many occasion to in contact therewith.” come Maytag Georgia: Arbogast, Co. v. cited are from cases two Collins, Maddox Co. v. and 350), SE Coffee following quoted The is at SE Maytag: the manufacturer of an length article, from “Where machinery, is built and assembled piece as a which at such . a factory . . knows of and conceals latent defect in the machine which would render its construction persons privity not in of contract with the manufacturer, but purpose who’used the intended, neg- machine the mere ligence of dealer, purchased who the machine from the person manufacturer and sold injured by failing it to a it, in to discover its condition, defective is not, law, as matter of such an intervening act as would break whatever causal con- might nection there negligence be between the manufacturer’s putting in knowledge out the machine with of its defective condition injury person, and an to a privity not in of contract with the manufacturer, operating received while the machine.”
The Ford Motor Company case has an interpreta- received by tion other courts since the cases discussed in the ALR anno- tation, supra. Strayer In Guffie v. Erie Co., F2d at page 382, length it was discussed at not apply held negligent situation where was in TVA the manner in which it delivered and stored dam, concrete for a and the other de- fendant allowing was in the concrete to fall on a roof erected it and in cleaning off roof, collapsed so that it employee. and killed an The same distinction was in made Heichel v. Corp., FSupp. Lima-Hamilton 240. The court quoted first authority hornbook that: “If the force which caused the injury put operation in is or motion is negligence what of the defendant, and that or motion progress is still force operation identity and has not continuity lost its as such injury when negligence occurs, puts then the the in- jurious in operation proximate forcé is Following cause.” this distinguished the Ford Motor case Co. “because there was not a continuity in the negligence, defendant’s but a break in the chain of causation.” See same effect Fredericks Export American Lines, F2d 450. injurious put force in motion General Motors was still operation at plaintiff’s the time of the injury. Under both
Georgia foreign authorities, and the well reasoned annota- tion in ALR, charge these circumstances are sufficient to negligence manufacturer with proximately causing injury, and the failure of a third proper to take the steps original discover and correct the are a concurrent, not an In my opinion, cause. it follows that both
883 strengthened rather than liable. This view is weakened are distinguishing language in cited cases. In some of the Maytag, Judge Stephens’ qualification that “the rule supra, knowledge might perhaps if the dealer had be otherwise case, defective condition of the machine” is based on a 1911 (140 Ky. 1047), v. Shaffer, Olds Motor 616 SW Works 145 discovering merry Oldsmobile, wherein the owner of a after that frame, seat fall off the took some visitors for rumble would spilled ride them out. The court said the owner unaware solely against was liable. “The reason for this is that the action proceeds on is on the theory, fact, maker founded selling practiced that the article he and deceit in con fraud cealing defects its dangerous; and, that made use unsafe and proven prac it is admitted or has not course, when he any concealment, purchaser ticed and that the informed was well defect, drops against as to the the bottom out of the case p. maker.” Id. in Mac 625. Prior landmark decision (111 Pherson v. Motor Y. Company, Buick N. NE 1050) allegations of fraud were considered essential to avoid privity-of-contract pitfall, and MacPherson was memorable charge reason of one, its initial statement: “The is not of fraud, negligence.” thereby but of was eliminated as a Fraud necessary Anno., element the cause of action. See also p. 2d, seq. Again, ALR et in Hatcher v. General Electric Co., App. 585, 647), it is stated: “The subject cases cited on the of insulation of manufacturers are party knowledge cases another had actual where of the defective and undertook to repair manufacture make thereof and failed knowledge to do so. Mere constructive is not pro sufficient to vide insulation the manufacturer.” Here the dealer neither knowledge had actual that the wheel was about to come off nor any attempt repair did he make it. Hatcher demands a con trary conclusion from that here reached.
“If according act of is to human ex- perience through calculated to neg- induce invite disaster ligence another, cannot rely upon he the doctrine of an him from cause insulate liability.” Smith v. Harrison, jury “Where a
question presented as to concurrent otherwise whether.the plaintiff’s injuries, defendants caused the two of one issue not be resolved as a matter of in favor will law failed to exercise due defendant because the other defendant consequences negligence.” care to avoid the of such defendant’s *10 Coxwell, (2) Atlantic C. L. R. Co. v. Taking allegations as true, the manufac- negligently turer released defective automobile into the stream of commerce, party plaintiff injured and an third innocent was proximate as the direct and negligence,, result this which was a breach of duty plaintiff. Concurrently its toward the there- Company duty with the Daniels Chevrolet breached its own persons might toward by failing who ride in the car to discover cause the vibration in the rear wheel when the vehicle was brought purpose. duty to it for that a separate Each had plaintiff, toward the duty, my opin- each breached that and in negligence jury to decide whether the ion it should be left to a proximate injuries cause of the or both was the either, neither, plaintiff additional burden putting received on the without negligence whose alleging proving that the manufacturer instrumentality also was created an active not failing anticipate which it did itself that the discovered another. know about would be Frankum, J., Pannell, J., P. am authorized to state I concur in this dissent.