Opinion
36493, 36494.
DECIDED FEBRUARY 12, 1957.
Tort; homicide by vehicle. Before Judge Manning. Cobb Superior Court. October 13, 1956.
Gordon M. Combs, for plaintiff in error.
J. G. Roberts, Dunaway Embry, contra.
A decision rendered upon a state of facts appearing in the record, in which the legal effect of those facts is declared, is, in all subsequent proceedings in the case, a final adjudication of the rights of the parties, from which the court cannot depart, nor the parties relieve themselves, so long as the facts themselves appear without material qualification.
DECIDED FEBRUARY 12, 1957.
Upon appeal to this court from a judgment finding in favor of the plaintiff father for the wrongful death of his son, this court affirmed the judgment ( Southland Butane Gas Co. v. Blackwell, 91 Ga. App. 277, 85 S.E.2d 542); but, upon certiorari from the Supreme Court ( Blackwell v. Southland Butane Gas Co., 211 Ga. 665, 88 S.E.2d 6), the judgment of this court was reversed, and the Supreme Court held in effect that the son, lying in a drunken condition upon the highway, was a trespasser and ruled: "One who knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, cannot hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter's negligence. Thus, if one voluntarily becomes drunk and consequently falls down, or lies down, in a state of insensibility on a public highway, so that he is injured by a passing motor vehicle, he cannot recover for injuries so received, even though there may have been contributory negligence on the part of the operator of the motor vehicle, where such negligence on the part of the operator did not amount to wilful and wanton negligence. The last-clear-chance or humanitarian doctrine is applicable only where the defendant knows of the plaintiff's perilous situation, and realizes, or has reason to realize, his helpless condition." Following that decision of the Supreme Court, the plaintiff amended his petition by the addition of counts charging the defendant's driver with wilfulness and wantonness in causing the death of the plaintiff's son. At that stage, the case stood upon a count charging simple negligence and two counts charging wilfulness and wantonness in the death of the plaintiff's son. The trial court sustained general demurrers to each of these counts and dismissed the petition. On appeal, this court held that the trial court erred in sustaining the demurrers to the count based on simple negligence and to one of the counts based on wilfulness and wantonness and remanded the case for trial. Blackwell v. Southland Butane Gas Co., 94 Ga. App. 128 ( 93 S.E.2d 833). On the trial of the case, the trial court directed a verdict in favor of the defendant. The plaintiff moved for a new trial upon the usual general grounds and two special grounds assigning error upon the direction of the verdict. The trial court denied the motion and the plaintiff has appealed to this court for a review of that judgment. The defendant assigns error, by way of cross-bill of exceptions, upon certain interlocutory rulings of the court.
The decision in a case on a former appeal is the "law of the case" on a subsequent appeal in the same case ( Scogin v. Beall, 54 Ga. 499; Norton v. Paragon Oil-Can Co., 105 Ga. 466, 30 S.E. 437; Burke v. Ledsinger, 115 Ga. 195, 41 S.E. 682; City of Douglas v. Union Banking Co., 179 Ga. 798, 177 S.E. 595); and, where on a new trial had upon the remanding of the case by an appellate court, no new facts are developed, the appellate court on a subsequent appeal cannot modify or overrule the law of the case as fixed in the first appeal ( Dixon v. Federal Farm Mortgage Corp., 187 Ga. 660, 1 S.E.2d 732; Smoot v. Alexander, 192 Ga. 684, 16 S.E.2d 544); and, a decision rendered by an appellate court upon facts appearing in the record, in which the legal effect of the facts is declared, is, in all subsequent proceedings in that case, and so long as the facts themselves appear without material qualification, a final adjudication of the rights of the parties, from which the court cannot depart, nor the parties relieve themselves. Sanderlin v. Sanderlin, 27 Ga. 334.
Under the decision of the Supreme Court in this case ( Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6), the status of the plaintiff's son was fixed in effect as that of a trespasser upon the highway, as the defendant's driver was held to be under no duty to anticipate his presence on the highway in a reposing position, and it was held that the only duty owed him as a trespasser by the defendant's driver was not to injure him wilfully or wantonly after his presence became actually known. The evidence on the new trial shows without dispute that the defendant's driver did not see the plaintiff's son lying on the highway until the defendant's truck was within 12 or 14 feet of him, and that the driver, after discovering his presence, did everything possible to avoid striking him. This evidence for all practical purposes is precisely the same as that which was before the Supreme Court on the first appeal, and the Supreme Court on that appeal ruled that a verdict was, under that evidence, demanded for the defendant. The trial court, consequently, under the law of the case as fixed by the Supreme Court, was compelled to direct the verdict for the defendant, and properly did so.
Judgment on the main bill affirmed; cross-bill dismissed. Gardner, P. J., and Townsend, J., concur.