50 Ga. App. 39 | Ga. Ct. App. | 1934
Robert E. Lott brought his action against J. M. Lee to recover for personal injuries sustained while riding as a guest in Lee’s car. The accident occurred in the State of South Carolina, and the “guest statute” of that State is pleaded as the basis of recovery. The petition alleges that the plaintiff was invited by the defendant to accompany him as a guest in his automobile to Brunswick, Georgia; that at a point on the road in South Carolina near Yemassee, S. C., he ran his automobile off the paved road while running at a speed of between fifty and sixty miles an hour, such speed being in violation of the South Carolina statute which was set out in the petition;-that the defendant regained the roadway without injury and was cautioned by the guests to drive carefully, which he promised to do; that a short time thereafter he again drove the automobile off the pavement, but managed to regain the, roadway without injury; that the plaintiff and other passengers offered to drive for the defendant, but he refused to allow them to drive, and stated that he would allow his son-in-law, who was also a passenger, to drive when they reached Yemassee; that a short time thereafter, at a point five miles from Yemassee, and while going at a speed of fifty to sixty miles per hour, and while looking around as he conversed with the occupants of said automobile, he again ran off the roadway onto the soft shoulder of the road, and, without slackening his speed, attempted to pull back onto the paved roadway, but, the pavement being at that point six inches higher than the shoulder, he had to tug at the steering wheel with unusual force, and, when the automobile mounted the pavement, it ran across the pavement and headed for the ditch on the left-hand side of the road, and the defendant abruptly jerked to the right and then to the left, and the automobile turned over completely, twice resulting in described injuries to the plaintiff. The petition further alleged that six weeks prior to this time the defendant ran his automobile over a “silent policeman” in the City of Augusta, and so disarranged his steering apparatus that the ear would continuously swerve to the right while it was being driven; that two
The general and special demurrer interposed to this petition was overruled, and the defendant excepted. The general demurrer was that “no facts are alleged showing that said accident was intentional on the part of the defendant or was caused by his
It will be seen from the statement above made that the conduct claimed to be heedless and in reckless disregard of the plaintiff’s rights (as there is no allegation that the accident was intentional) consists in: (a) the unlawful speed of the car; (b) the failure to equip the car with suitable steering apparatus and the failure to inspect and repair the same; (c) the operation of said car while the plaintiff was a guest therein when the defendant knew of the defective condition of the steering apparatus, and (d) the looking back and talking with other occupants of the car while driving it.
There is no statute law in Georgia respecting the right of a guest in an automobile to recover damages for injuries sustained therein from the owner or operator; however, our courts have laid down the principle that “one riding by invitation and gratuitously in another’s automobile can not recover for injury caused by the other’s negligence in driving, unless it amounted to gross negligence.” Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297); Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256); Peavy v. Peavy, 36 Ga. App. 202 (136 S. E. 96); Blanchard v. Ogletree, 41 Ga. App. 4 (152 S. E. 116); Meddin v. Karsman, 41 Ga. App. 282 (152 S. E. 601); Luxenburg v. Aycock, 41 Ga. App. 722 (154 S. E. 460); Rosenhoff v. Schaul, 42 Ga. App. 776 (157 S. E. 215) ; Wachtel v. Bloch, 43 Ga. App. 756 (160 S. E. 97); West v. Rosenberg, 44 Ga. App. 211 (160 S. E. 808); Smith v. Hodges, 44 Ga. App. 318 (161 S. E. 284) ; Townsend v. Minge, 44 Ga. App. 453 (161 S. E. 661); Yearwood v. Yearwood, 45 Ga. App. 203 (164 S. E. 105). See also Slaton v. Hall, 168 Ga. 711 (148 S. E. 741, 73 A. L. R. 891). In the present case the statute of
No decision of any court of last resort of the State of South Carolina construing the statute in question seems to have been handed down. However, it is conceded in the briefs of counsel on both sides that the South Carolina statute is verbally the same as the statute of Connecticut, which was passed in 1937, and which appears to have been the first of these so-called guest statutes, and that the decisions of the courts of last resort of the State from which the statute was adopted are to be considered in the construction thereof. The courts of last resort in Connecticut have construed this statute in a number of cases. The first case in which they were called upon to construe the statute was that of Silver v. Silver, 108 Conn. 371 (143 Atl. 240, 65 A. L. R. 943), in which it was held: “Section 1 of Chapter 308 of the Public Acts of 1937 provides that fno person transported by the owner or operator of a motor vehicle as his guest without payment for sirch transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others/ Held: 1. That while the term ‘heedlessness/ standing by itself, is frequently synonymous with carelessness or negligence, it could not be thus construed in this
It is reasonable to presume that the South Carolina General Assembly, in adopting the act, adopted it in view of the construction placed thereon by the courts of Connecticut. See, in this connection, Commonwealth v. Huntington, 148 Va. 97 (138 S. E. 651); Graham v. State, 109 S. C. 301 (96 S. E. 138). The construction placed upon this statute by the Supreme Court of Connecticut has been followed consistently. See Rindge v. Holbrook, 111 Conn. 72 (149 Atl. 231); Potz v. Williams, 113 Conn. 278 (155 Atl. 211); Sadinsky v. Coughlin, 114 Conn. 585 (159 Atl. 492); Anderson v. Colucci, 116 Conn. 67 (163 Atl. 610). In Hull v. Seaboard Air-Line Ry., 76 S. C. 278 (57 S. E. 28, 10 L. R. A. (N. S.) 1213), it is said: “Each of the words, wantonness, wilfulness and recklessness, embodies the element of malice, either express or implied, and are in law substantially the equivalent of each other, in
In 45 C. J. 676, § 43, it is said: “Wantonness includes the element of heedless or reckless disregard of consequences as affecting the life or safety or property of another, or, as it has been expressed, a willingness to inflict injury or an indifference as to whether injury is inflicted.” In Georgia a very clear distinction has been drawn between wilful and wanton misconduct and gross negligence. Powell, J., in Central of Ga. Ry. Co. v. Moore, 5 Ga. App. 562 (63 S. E. 642), said: “Wilfulness and wantonness are so far the opposites of negligence as to make the expression 'wilful and wanton negligence’ misleading,' though it is frequently employed by many of our best jurists and lawwriters.” The rules incident to wilful and wanton conduct are not applicable in a case unless the conduct of the defendant evinces “wilful intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences, where human life or limb was involved, as to justify the jury in finding a wantonness equivalent in spirit to actual intent.” Jenkins, P. J., in Buffington v. Atlanta, Birmingham & Coast R. Co., 47 Ga. App. 85 (169 S. E. 756), said: “Since the words 'negligence’ and 'wilfulness’ are incompatible, and a cause of action sounding in ordinary negligence is one thing, and one sounding in wilful misconduct is another, a plaintiff, in a single count, must proceed upon one theory or the other, and can not, in the absence of a statute permitting it, allege in such count both simple negligence and wilful misconduct.” “Many authorities regard gross negligence as the equivalent of wilful and wanton negligence, although in this State it is not so accounted, unless the evidence indicates 'that entire absence of care which would raise the presumption of conscious indifference,’ or that, with reckless in
We come, therefore, to the proposition that unless the acts as pleaded in the present petition, although they are charged as being wilful and wanton and in utter disregard of the rights of others, are such as would sustain this conclusion, they are insufficient in law as a basis for a cause of action under the statute pleaded, and the general demurrer should have been sustained and the case dismissed. See, in this connection, Western Union Telegraph Co. v. Harris, 6 Ga. App. 260 (64 S. E. 1123); Smith v. Hodges, 44 Ga. App. 320 (161 S. E. 284), and cases cited.
Let us now consider the allegations of the petition and determine whether the facts alleged constitute, under the construction of the statute as announced above, wanton misconduct, evincing a reckless indifference to consequences to life, limb, or property of another. Are the acts alleged more than negligence, more than gross negligence? Is the allegation of the petition with respect to the speed of the car an allegation of such a fact as constitutes wilful misconduct, and in that sense more than gross negligence ? In the case of Anderson v. Colucci, 116 Conn. 67 (163 Atl. 610), it was said: “The plaintiff had the legal status of a guest, and it was incumbent upon him to establish, prima facie, that the defendant in one of the ways alleged acted with heedless and reckless disregard of the rights of others.” It was held that the fact that the defendant was driving at a “terrific” speed did not justify an inference that he was indifferent to the consequences which might result to his passengers from his conduct, or that he was guilty of wanton or wilful misconduct. In other words, the driving of an automobile in excess of a legal rate of speed, while it may be negligence per se, does not of itself constitute wilful and wanton misconduct such as would permit, under the statute here under consideration, a recovery for an injury proximately caused by such speed. Ascher v. Friedman, supra.
It is also alleged that the defendant, with knowledge that the steering apparatus on his car was in a defective condition, drove the car without having it inspected and repaired. It may be said
As already pointed out, in order for the guest to recover in this case, it is necessary that he show that the conduct of the owner and operator was wanton and wilful. The fact that the car “had a tendency to swerve to the right” does not of itself make such a dangerous condition as to make the operation thereof by the owner wanton and wilful misconduct toward a gratuitous guest. See, in this connection, Moffatt v. Kenney, 174 Mass. 311 (54 N. E. 850); Rindge v. Holbrook, supra. The conditions as imposed by this statute are somewhat analogous to the rule fixed in this State in reference to gratuitous passes on railroads, where it is
Judgment reversed.