Bazemore v. Stephenson, 10531

10531 | Ga. Ct. App. | Sep 18, 1919

Dissenting Opinion

Stephens, J.,

dissenting. If there is any evidence to authorize the inference that the defendant wilfully and intentionally drove his automobile into the automobile in which the plaintiff was riding, there would then be an issue of fact for determination by the jury, and the direction of a verdict by the trial judge was error. There is evidence in this case that the two automobiles were approaching each other along a public road; that the defendant held his course and failed to turn out, although there was ample room in the road for him to do so and a suitable road-bed to his right for his ear to pass over; that the defendant was driving the larger car{ and that the defendant, after the collision, continued on without stopping. Without reference to the rest of the evidence, this it would seem is sufficient to authorize the inference that the defendant was acting wilfully and intentionally. “Assault and battery may be committed by striking another with an automobile intentionally, or by driving the machine so recklessly as to justify a jury in finding that there was a reckless disregard of human life and safety. Dennard v. State, 14 Ga. App. 485 (81 S.E. 378" court="Ga. Ct. App." date_filed="1914-04-18" href="https://app.midpage.ai/document/dennard-v-state-5607107?utm_source=webapp" opinion_id="5607107">81 S. E. 378). And see Gallery v. State, 92 Ga. 464 (2) (17 S.E. 863" court="Ga." date_filed="1893-05-08" href="https://app.midpage.ai/document/gallery-v-state-5565249?utm_source=webapp" opinion_id="5565249">17 S. E. 863); Collier v. State, 39 Ga. 31, 34 [99 Am. D. 449]. The same is true where, under like circumstances, the automobile is driven against another vehicle in-which persons are riding, whereby the collision occasions bruises, blows, and similar physical injuries to persons in the vehicle so struck.” Tift v. State, 17 Ga. App. 663 (88 S.E. 41" court="Ga. Ct. App." date_filed="1916-02-18" href="https://app.midpage.ai/document/tift-v-state-5608371?utm_source=webapp" opinion_id="5608371">88 S. E. 41), and authorities there cited. In the Dennard case, supra, it was said: “A reckless disregard of human life may be the equivalent of a specific intent to kill; and whether it existed . . was a question for the jury.”

That the plaintiff in this ease was unable to^say that the defendant deliberately and intentionally drove into him does not eliminate the issue as raised by the other testimony in the case.

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Lead Opinion

Broyles, P. J.

The sole question in this case is whether the evidence authorized a finding by the jury that the defendant wilfully and intentionally drove his automobile against the automobile in which the plaintiff was riding, so as to constitute such a malicious tort as would come within subdivision sec. 17 a (2) of the bankruptcy act of July 1, 1898 (30 Stat. 550, U.. S. Comp. St. § 9601). The records fails to disclose any evidence which would have authorized such a finding. The plaintiff himself testified in effect that he did not know and could not say that the defendant deliberately or intentionally did so. The court, therefore, did not err in directing a verdict for the defendant. See, in this connection, Collier on Bankruptcy (11th ed.), 402, 441; Tinker v. Coldwell, 193 U.S. 473" court="SCOTUS" date_filed="1904-03-21" href="https://app.midpage.ai/document/tinker-v-colwell-96040?utm_source=webapp" opinion_id="96040">193 U. S. 473, 481 (24 Sup. Ct. 505, 48 L. ed. 758); 11 Am. B. R. 568).

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., dissents.