Opinion
43084, 43116.
ARGUED SEPTEMBER 12, 1967.
DECIDED SEPTEMBER 27, 1967.
Action for damages. Stephens Superior Court. Before Judge Smith.
McClure, Ramsay Struble, Robert B. Struble, for appellant.
Heard Leverett, E. Freeman Leverett, Robert H. Harris, for appellees.
In order for there to be a recovery for the homicide of a person whose death is alleged to have been caused by the negligence of the defendant, the deceased on the occasion when fatally injured must have been in the exercise of ordinary care for his own safety.
ARGUED SEPTEMBER 12, 1967 — DECIDED SEPTEMBER 27, 1967.
This is an appeal in an action brought by Mrs. Irene Crawford Roberts for the death of her minor son, Joe Billy Wayne Roberts. Two of the defendants were James Wallace Anderson, the driver of the Buick automobile in which deceased was riding as a passenger, and his mother, Mrs. Kitty Anderson Rose, who was sued under the family-purpose car doctrine. These defendants filed no defensive pleadings, and the case was in default as to them. The other two defendants were David Bryant, a minor, who was sued on the theory that the automobile he was driving was engaged in a race with the Anderson car, and his father, H. C. Bryant, Jr., under the family-purpose car doctrine.
The case proceeded to trial before a jury, resulting in a verdict against the Anderson defendants, and in favor of the Bryant defendants.
The evidence showed that: all of the persons immediately involved were teen-agers; on the afternoon of May 21, 1966, defendant David Bryant purchased two tires from defendant James Wallace Anderson, and later that evening, the two met at the James Morris Gulf Service Station of "Big A" (which is on State Highway 17 between Toccoa and Lavonia, Ga.) for payment to be made; the two boys got in the Bryant car, leaving Anderson's car at the service station and picked up another passenger, James Crowe; the three rode around a while, and returned to the Gulf station where they changed cars, leaving the Bryant car parked at Bell's Food Store; the group rode into downtown Toccoa where the deceased was picked up, and thereafter continued their ride; after deceased entered the car Anderson was driving recklessly; prior to the fatal accident, Anderson lost control of the vehicle, causing it to run into the ditch at the Stephens County High School; James Crowe and David Bryant told Anderson that they didn't want to ride with him anymore and asked that he take them back to Bell's Food Store; upon arriving at the store they got into Bryant's car, the deceased remaining in the Anderson car; the two vehicles then started to South Carolina to get some beer; on reaching Nichols Service Station the two vehicles stopped for a few moments, and then "pulled off," the Bryant vehicle leaving ahead of the Anderson car by several hundred feet; shortly after rounding a curve on Fernside Drive, David Bryant, observing that he no longer could see the headlights of the Anderson car in his rearview mirror, returned and found that the latter had run off the road, throwing deceased from the car and causing his death; there was no evidence of any physical contact between the two cars; Bryant and Crowe denied that there was any race; James Anderson testified that there was no agreement or understanding that they would race.
The evidence further disclosed: that the deceased made no complaint as to the manner in which the defendant Anderson was driving; that he did not get out of the automobile or make any request to leave the vehicle.
The evidence was that as the Anderson automobile started around the curve it was traveling at a speed of between eighty and ninety miles per hour. Anderson testified in part: "Q. At any time did the Roberts boy complain to you and tell you to slow down? A. No, sir. Just before we got to the curve, I said, `I am going to slow down; I'm afraid I can't make the curve.' He said, `No, speed up because they made it, and if they made it, we can make it.' Q. At any time before that, had he said anything about the way you were driving? Had he complained about the way you were driving, in other words? A. No, sir."
The rule is well established that in order for there to be a recovery for the homicide of a person whose death is alleged to have been caused by the negligence of the defendant, the deceased on the occasion when fatally injured must have been in the exercise of ordinary care for his own safety. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665 ( 88 S.E.2d 6). The evidence adduced upon the trial and related in the foregoing statement of facts affirmatively discloses that the youth for whose homicide the suit was brought was not in the exercise of ordinary care in that he took the obvious risk of physical injury by acquiring in and encouraging the reckless driving which resulted in his death.
The testimony of the conversation between the defendant Anderson and the deceased which immediately preceded the tragic incident was of probative value, being both a part of the res gestae and in the nature of original evidence. Ellis v. Southern R. Co., 96 Ga. App. 687 ( 101 S.E.2d 230).
Since the verdict and judgment complained of was demanded, the appellants' enumerations of error excepting to portions of the charge will not be considered. Castile v. Burton, 200 Ga. 877, 883 (3) ( 38 S.E.2d 919); Richardson v. Hairried, 202 Ga. 610, 615 (2) ( 44 S.E.2d 237).
Judgment affirmed on main appeal; cross appeal dismissed. Jordan, P. J., and Deen, J., concur.