Opinion
35345.
DECIDED OCTOBER 6, 1954. REHEARING DENIED OCTOBER 25, 1954.
Action for damages. Before Judge Manning. Cobb Superior Court. June 5, 1954.
Haas, White, Douglas Arnold, George A. Haas, for plaintiff in error.
Willingham, Cheney, Hicks Edwards, Claud Hicks, contra.
1. The petition sufficiently alleged the trial court's jurisdiction of the subject matter of the suit, and the defendant waived any jurisdictional defects as to her person by appearing through her attorneys and pleading to the merits.
2. The petition stated a cause of action under at least two theories, and the trial court did not err in overruling the general demurrers thereto.
3. None of the special demurrers is meritorious.
DECIDED OCTOBER 6, 1954 — REHEARING DENIED OCTOBER 25, 1954.
Wiley F. Smith brought an action for damages against Mrs. Barbara A. Garver. The material allegations of his petition are substantially as follows: 1. The defendant resides at New Haven, Indiana. 2. Jurisdiction of the defendant is acquired for the reason that this cause of action arises from the fact that an automobile driven by William B. Potts, Jr., struck the plaintiff's automobile, damaging the automobile and injuring the plaintiff, on State Highway No. 280, approximately three miles east of the City of Marietta, Cobb County, Georgia. The highway is a public one of the State of Georgia, and the automobile that was being driven by Potts was owned by the defendant and was being used at her instance and request. Under the provisions of the Non-Resident Motorist Act of 1937 (Ga. L. 1937, pp. 732-734; Code, Ann. Supp., §§ 68-801-68-806), the Secretary of State of Georgia or his successor in office shall be the true and lawful attorney in fact to accept service of process in this action for and on behalf of said non-resident defendant. 3. The defendant has injured and damaged the plaintiff in the sum of $20,381. 4. On August 29, 1952, at approximately 9 p. m., the plaintiff was driving in his automobile in a westerly direction on what is known as the Access Highway to the Lockheed Aircraft Corporation, being State Highway No. 280. 5. At that time and place it was necessary for the plaintiff to drive his automobile to the right-hand shoulder of the highway to a point approximately 24 feet from the center line of the highway for the purpose of stopping and drying the coils in the motor of the automobile, as he had just prior to this stop driven through approximately one and one-half feet of water which had collected across the highway due to a constant downpour of rain. 6. After the plaintiff had parked his automobile on the shoulder of the highway with all lights burning on the automobile, including both headlights, two tail lights, and a center line, he got out of his automobile. 7. While standing on the right-hand side of his automobile, the plaintiff raised the hood of the car and was in the process of drying the coils leading to the distributor system when Potts, being the agent and servant of the defendant, while driving in a westerly direction on the highway in question, drove the defendant's automobile violently into the left rear side of the plaintiff's car. 8. Potts' carelessness and negligence in driving into the plaintiff's car caused the hood of the plaintiff's car to fall on the plaintiff's right arm and to injure his wrist severely. 9. The plaintiff's wrist was completely splintered and shattered on account of the hood of the car falling on it, and his nervous system was shocked and shattered. 10. The plaintiff's automobile was injured and damaged in enumerated particulars. 11. The plaintiff's car before the accident was worth $400 and after the collision its value was reduced to $250. 12, 13. The plaintiff was forced to undergo medical treatment and incurred therefor enumerated expenses. 14. The defendant knew before turning her automobile over to Potts that Potts was an incompetent and reckless driver; and that, in spite of her knowledge that Potts was incompetent and reckless, she, "at her instance and request and consent allowed" him to drive her automobile.
The foregoing damages to the plaintiff were caused by the following acts of negligence of Potts, the agent and servant of the defendant, and are in law chargeable to the defendant: (a) The defendant was negligent and careless in allowing Potts to drive her car in a careless and negligent manner while driving as an agent and servant at a high rate of speed, greater than 55 miles per hour on the highway in question, as he was, at the time and place, unable to control the automobile, and this is negligence per se. (b) The defendant was negligent in allowing her agent and servant, Potts, to operate a motor vehicle on a public highway at a speed that was greater than was reasonably safe, having due regard for the width, grade, character, traffic, and common use of the highway, so as to endanger the life, limb, and property of the plaintiff, in violation of Code § 68-301, which is negligence per se. (c) The defendant was negligent in allowing and entrusting the agent, Potts, with the automobile when she knew him to be a reckless and incompetent driver. (d) The defendant was negligent in that her agent drove into the plaintiff's automobile, parked on the shoulder of the highway. 16. The plaintiff is entitled to recover from the defendant $20,000 for his pain and suffering and the additional sum of $381 for his special damages.
The defendant, through her attorneys, filed general and special demurrers to the petition, which were all overruled, and she has brought the present writ of error to review that judgment,
1. All suits or causes of action brought under the Non-Resident Motorist Act of 1937 (Code, Ann. Supp., § 68-801 et seq.) shall be brought in the county in which the accident, injury, or cause of action originated, or in the county of the residence of the plaintiff therein, as the plaintiff in such suit may elect, if the plaintiff in such suit is a nonresident of the State of Georgia; and if the plaintiff in such suit is a nonresident of the State of Georgia, then in that event such suit shall be brought in the county in this State in which the accident or injury occurred or the cause of action originated. Code (Ann. Supp.) § 68-803. It is apparent from the provisions of this section of the Code that jurisdiction of actions involving nonresident motorists is conferred upon the courts of either of two counties if the plaintiff be a resident of the State, the county of the plaintiff's residence or the county in which the cause of action originated. If the plaintiff be a nonresident also, jurisdiction is conferred upon only the courts of the county in which the cause of action originated. Counsel for the defendant in their briefs filed in this court contend, however, that, since the plaintiff has not alleged his own residency and has not alleged that the defendant was a nonresident at the time of the collision between the automobiles, it is apparent on the face of the petition that the Superior Court of Cobb County is without jurisdiction of the subject matter of the suit and the person of the defendant, and that this want of jurisdiction may be taken advantage of by general demurrer. This position is untenable. The collision between the plaintiff's and the defendant's automobiles is sufficiently alleged to have occurred in Cobb County, and consequently the courts of that county specified by the statute have jurisdiction of the subject matter of the suit whether or not the plaintiff was a resident or nonresident of the State, either by virtue of the plaintiff's election to sue in the county where the cause of action originated, if a resident of Georgia, or by direction of the statute, if a nonresident. While it is true that the plaintiff does not allege that the defendant was a nonresident at the time of the collision, it is alleged that she was a nonresident at the time of the filing of the suit, and it does not affirmatively appear from the allegations of the petition that her status was otherwise at the time of the collision. The want of jurisdiction does not appear upon the face of the petition, and it is not therefore subject to general demurrer for that reason. Jurisdictional defects not apparent upon the face of the petition must be taken advantage of by plea. Thurman v. Willingham, 18 Ga. App. 395 (3) ( 89 S.E. 442), and citations. Since the court had jurisdiction of the subject matter of the suit and the defendant, without objection to the jurisdiction, appeared through her attorneys and pleaded to the merits of the case by demurring generally thereto, she can not now be heard to complain if in fact the court for any reason did not have jurisdiction of her person. Her action in pleading to the merits will be treated as a waiver of jurisdictional defects insofar as they relate to the court's jurisdiction of her person. Harper v. Allen, 41 Ga. App. 736 ( 154 S.E. 651), and citations.
2. The petition states a cause of action under at least two theories and is not subject to general demurrer. "Where one supplies another with an automobile to be used by the latter, who is not qualified to drive it, which is known to the owner, and injury results to a third person by reason of the incompetence of the driver, a jury is authorized to find this to be such negligence as would authorize recovery against the owner." Burks v. Green, 85 Ga. App. 327 ( 69 S.E.2d 686). The present petition sufficiently charges that the defendant was negligent in turning her automobile over to Potts whom she knew to be a reckless and incompetent driver, and that the plaintiff's injury and damage were the proximate result of such negligence.
The petition also states a cause of action under the doctrine of respondeat superior. One of the ways of pleading that the agency existed so as to make the alleged principal responsible for the wrongful acts of the agent is to allege by a simple direct statement that the defendant principal by its agent committed the wrongful act, and this as against a general or special demurrer would be sufficient. Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324, 328 (3) ( 58 S.E.2d 559), and citations. The plaintiff sufficiently alleged that the defendant committed the wrongful act through her agent to bring the case within the rule stated in the Conney case.
3. None of the various special demurrers is meritorious, and other than to say that the allegations that Potts was the agent of the defendant and that she knew him to be a reckless and incompetent driver, are allegations of ultimate fact and not conclusions of the pleader (see Lewis v. Amorous, 3 Ga. App. 50, 59 S.E. 338), the special demurrers require no further comment.
The trial court did not for any reason assigned err in overruling the general and special demurrers.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.