Opinion
36615.
DECIDED APRIL 24, 1957. REHEARING DENIED MAY 9, 1957.
Tort; injuries to guest in automobile. Before Judge Carpenter. Hancock Superior Court. December 10, 1956.
G. L. Dickens, Jr., Dickens Dickens, for plaintiff in error.
Lewis Rozier, Randall Evans, Jr., contra.
1. Under the record in this case the motion to dismiss is insufficient to show that Morris is an indispensable party to the appeal.
2. The trial court properly overruled the defendant Anderson's demurrer to the petition.
DECIDED APRIL 24, 1957 — REHEARING DENIED MAY 9, 1957.
Mrs. Emmie Williams filed suit in Hancock County against M. C. Anderson, a resident of South Carolina, and Rembart Morris, a resident of Hancock County, Georgia. She alleged that she was riding as a guest in a car owned and being driven by the defendant Anderson on July 27, 1956, between 8:30 and 9:30 p. m., and that the car in which she was riding and a car operated by the defendant Morris collided. The plaintiff sets out many acts of negligence against both defendants, including gross and ordinary negligence, and alleges that the negligence of both defendants was the proximate and efficient cause of her injuries.
The defendant Anderson filed general demurrers to the petition as follows: "1. M. C. Anderson demurs generally to the allegations contained in the plaintiff's petition on grounds that they set forth no cause of action against M. C. Anderson. 2. Defendant demurs generally to the allegations contained in plaintiff's petition on grounds that they were so vague and indefinite they set forth no cause of action against M. C. Anderson. 3. Defendant demurs generally to the allegations contained in plaintiff's petition on the grounds that they show conclusively that any injuries or damages plaintiff alleges she sustained were caused solely by the negligence of Rembart Morris, codefendant. Wherefore, defendant prays these his grounds of demurrer be inquired into and sustained, and this defendant be stricken as a party defendant from said case."
The court overruled the general demurrers of the defendant Anderson. To this judgment the defendant Anderson filed his bill of exceptions to this court.
The defendant Morris was not made a party defendant in the bill of exceptions in this court. Counsel for the plaintiff filed a motion to dismiss the bill of exceptions for the reason that the defendant Morris is a necessary party to the bill of exceptions and was not made a party to the bill of exceptions and was not served with a copy of the bill of exceptions within 10 days after it had been finally approved by the trial court.
1. The record in this case does not show that Morris was an indispensable party to the appeal. It follows that this court declines to dismiss the case on that ground. See Miner v. Champion, 212 Ga. 759 (1) ( 95 S.E.2d 668); Parks v. Stein Steel Supply Co., 85 Ga. App. 306 ( 68 S.E.2d 919); Edwards v. Dowdy, 85 Ga. App. 876, 882 ( 70 S.E.2d 608); Wright Contracting Co. v. Waller, 89 Ga. App. 827 ( 81 S.E.2d 541).
2. The plaintiff, although originally a guest to whom the driver owed only the duty of slight care, brought about what amounted to a change in the legal relationship of the parties by reason of her request to be permitted to leave the car and Anderson's refusal to allow her to do so, and thereafter, being a passenger therein against her will, the defendant Anderson owed her the duty to exercise ordinary care in her behalf. Blanchard v. Ogletree, 41 Ga. App. 4 (2) ( 152 S.E. 116); Fountain v. Tidwell, 92 Ga. App. 199 (4) ( 88 S.E.2d 486). And this is true even though the degree of negligence is alleged to have been gross. See also Western Union Telegraph Co. v. Harris, 6 Ga. App. 260 (2) ( 64 S.E. 1123).
3. From the petition it appears that Anderson was guilty of negligence in fact in proceeding as he did through the storm on a narrow road with worn, slick tires. He was also guilty of negligence per se in violating the speed limit. Any person being guilty of negligence in violating the law loses the benefit of the presumption that others will use the road in a lawful manner, but must rather presume that others, like himself, will be violating the traffic laws. Williams v. Grier, 196 Ga. 327 ( 26 S.E.2d 698).
4. As against an innocent third party who is an unwilling passenger in the automobile which is being driven in a reckless and hazardous manner in violation of law, it cannot be said that the sole proximate cause of the plaintiff's injuries was the negligence of the driver of the on-coming car. This is true because one who becomes aware of the negligence of another, or in the exercise of ordinary care should have become aware of it under circumstances where he could avoid it is himself guilty of negligence in failing to exercise ordinary care to avoid the negligence of the other party. The petition here affirmatively alleges that, even under the circumstances showing Anderson's driving to be itself negligent, he saw the approaching automobile coming toward him in his lane of traffic when it was still 150 yards away, and when he still, in the exercise of ordinary care, could have slowed down, turned right onto the shoulder of the road, and avoided it. Taking the allegations of the petition as true, he had the last clear chance, after knowledge of the situation, of avoiding it, but, instead of slowing down and turning out of the way of the approaching vehicle, he continued toward it with unabated speed and hit it head-on. This was negligence, at least as to a passenger in his vehicle who was herself in the exercise of due care.
Accordingly, the trial court properly overruled the defendant Anderson's demurrer.
Judgment affirmed. Townsend and Carlisle, JJ., concur.