Opinion
42895.
ARGUED JUNE 6, 1967.
DECIDED OCTOBER 6, 1967. REHEARING DENIED NOVEMBER 1, 1967.
Action for damages. Richmond City Court. Before Judge Chambers.
Fulcher, Fulcher, Hagler, Harper Reed, E. D. Fulcher, A. Montague Miller, for appellant.
Randall Evans, Jr., for appellee.
1. The evidence did not authorize a finding that the defendant owed the guest plaintiff ordinary care.
2. Whether or not the defendant was guilty of gross negligence in throwing up her hands and screaming when confronted with an approaching truck in her line of traffic was a question of fact for the jury.
ARGUED JUNE 6, 1967 — DECIDED OCTOBER 6, 1967 — REHEARING DENIED NOVEMBER 1, 1967 — CERT. APPLIED FOR.
Mrs. Mattie Lee Whisnant sued Mrs. Bernice Laverne Whisnant in the City Court of Richmond County to recover damages for personal injuries for reasons stated in the petition which was substituted by amendment for the original. Parts of the petition necessary for a decision of the case are as follows: "7-a. The wrongful and negligent acts which will be hereinafter set forth in this petition as against Mrs. Bernice Laverne Whisnant, defendant, were committed by her while driving an automobile over the public highways of this State. 9. James T. Kelly was driving a truck over U.S. Highway No. 78, and in a westerly direction towards Athens, and was returning home from the day's work on the afternoon of June 14, 1965. 10. When James T. Kelly reached a point on U.S. Highway No. 78 approximately three miles east of Athens, he overtook two other trucks traveling in the same direction, to wit, towards Athens. 11. U.S. Highway No. 78 is a paved highway and at this point was from 20 to 22 feet in width, being wide enough for only two lanes of travel [traffic] to wit, one lane for westbound traffic and one lane for eastbound traffic. 12. James T. Kelly accelerated the speed of his truck and drove to his left-hand side of the center line of the paved highway, leaving the lane of traffic that was being used by westbound vehicles, and thereafter occupying the lane of traffic that was being used by eastbound vehicles, and in such situation there was no room for eastbound vehicles to meet said Kelly and the other two trucks on the paved part of U.S. Highway No. 78. 13. At the same time, plaintiff was riding in a Ford car, driven by Mrs. Bernice Laverne Whisnant, defendant, and headed in an easterly direction (toward Lexington, Georgia) in its right-hand lane of travel so that said Ford car was facing and meeting the truck driven by James T. Kelly, and both of said vehicles were in the right-hand lane of travel of Mrs. Bernice Laverne Whisnant. 13-a. Plaintiff was an invited passenger in said automobile, with no right, duty, or obligation to control or direct the way and manner in which the said Ford automobile was driven, and she was in said automobile to confer a substantial benefit on the owner and driver of said car, to wit, to help to attend to their minor children who were also riding in said car. 13-b. Although said two vehicles were meeting each other in a curve, the driver of each vehicle was able to see the other vehicle when they were at a distance of 150 yards from each other, and although said James T. Kelly was driving on the wrong (his left-hand) side of the center line of the highway and meeting the approaching vehicle, he continued to drive forward toward said Ford automobile without reducing speed. 13-c. When the two vehicles were 75 yards apart, both plaintiff and Mrs. Bernice Laverne Whisnant, defendant, were put in imminent peril of their lives, which situation was known to Mrs. Bernice Laverne Whisnant because she was able to see the approaching truck driven by Kelly in her right-hand lane of travel while knowing there was not enough room for them to meet in said right-hand lane of travel, and said Mrs. Bernice Laverne Whisnant, defendant, had the opportunity to exercise all ordinary and reasonable care to save herself and plaintiff from injury by applying the brakes of said Ford automobile and reducing speed to 10 to 15 miles per hour, and driving onto her right-hand shoulder and into the right-hand ditch without overturning said automobile; but she continued forward in her own right-hand lane of travel until said two vehicles were approximately 30 yards apart at which time she was running at a speed of approximately 35 or 40 miles per hour, and she suddenly dropped her hands from the steering wheel of said Ford automobile and her husband who was sitting on the front seat by her seized the steering wheel, and jerked it suddenly to the right, causing it to veer and to run into the right-hand ditch, while escaping the oncoming truck in said Ford's lane of travel, and said Ford car ran into a utility pole and overturned and caught fire. 15. The drivers of other motor vehicles at said place stopped and helped to extricate plaintiff from the Ford car, where she was seriously injured and unable to help herself, and one of those persons extinguished the fire that was blazing about the car in which plaintiff was riding. 19. The proximate cause of plaintiff's damages and injuries was the gross negligence committed by James T. Kelly and the gross negligence committed by Mrs. Bernice Laverne Whisnant, the negligence of each concurring with the negligence of the other, to become the proximate cause of the collision and of plaintiff's resulting injuries, as hereinafter specified. 21. The gross negligence committed by Mrs. Bernice Laverne Whisnant was as follows: (a) In continuing to drive forward, while seeing the truck driven by James T. Kelly was in his left-hand lane of travel and in her right-hand lane of travel, as said two vehicles were meeting her, without reducing speed, until she was approximately 30 yards from said approaching truck driven by Kelly. (b) In not applying the brakes and reducing speed when she was 75 to 100 yards away from the approaching truck which was meeting her in her own right-hand lane of travel, without room for the two vehicles to pass each other in said lane of travel, and at a time when she had the opportunity of reducing the speed of the car to a speed of from 10 to 15 miles per hour, and with the opportunity of thereafter driving onto her right-hand shoulder and into the right-hand ditch at a slow speed without overturning. (c) In realizing that plaintiff had been placed in imminent peril of injury to her person or loss of life, and when by the exercise of all ordinary and reasonable care, through reducing the speed of the car and driving onto the right-hand shoulder and into the right-hand ditch while at a distance of from 75 to 100 yards, the plaintiff could have been saved from injury, and in yet not exercising all ordinary and reasonable care to save plaintiff from injury through taking the action aforementioned. (d) In not using the last clear chance to save plaintiff from injury after her position of imminent peril was known to said defendant, and the failure to exercise all ordinary and reasonable care under such circumstances amounting to gross negligence.
(e) In taking her hands from the steering wheel and ceasing to exercise any control whatever over said Ford car, when the two vehicles were about 30 yards apart."
The jury found for the plaintiff. The defendant appealed from the judgment entered on the verdict. One error enumerated is that the verdict was without evidence to support it.
1. One of the controlling questions involved in this case is whether or not the defendant owed the plaintiff the duty to exercise ordinary care.
The status of an invited guest is determined by the intent and purpose of the host at the time of the invitation. In this case it is sought to prove, as it was alleged, that the plaintiff was invited on the trip for the purpose of rendering substantial assistance to the defendant and her husband. There is no evidence to support such a conclusion. The defendant testified positively that such was not the purpose of the invitation. The plaintiff "asked" to be invited because she loved to go on such trips. That the plaintiff incidentally rendered beneficial services by attending to the children on the trips, as against deriving pleasure for herself by attending them, is immaterial. The sole question is what was the purpose and intent of the host in extending the invitation. In this case it was for the sole benefit of the guest. There is certain testimony of the appellant which the appellee contends authorized the finding that one principal purpose of the trip was the rendition of substantial services to the appellant and her husband. The record shows the following questions and answers to and by the plaintiff:
"Q. All right, was that the purpose of your trip in going along with your daughter in her condition and to bring those children back? A. Well, I went because I enjoy going to her mother's and to help with her if she got sick and to help with the children if there was any need to be of any help. Q. And did you and she both agree on this? A. Well, I had asked them when they went to let me go, so I could go with them. Q. And was that the purpose stated to help them did you say? A. Yes, sir. Q. And did she agree on this? A. Yes she was glad for me to go because I always went with them when they went."
Most of the answers to the above questions were ambiguous, evasive and not directly responsive to the questions. Not one time did the plaintiff positively state that she was invited in order to render a substantial benefit. If the "yes" answer to the last question above can be said to be a definite and positive answer the witness' explanation and basis for the conclusion shows that the "yes" answer was without foundation. Neither the above testimony nor any other shows that the host's invitation was for the purpose of the guest's rendition of substantial services to the host. A party's testimony is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Southern R. Co. v. Hobbs, 121 Ga. 428 (1) ( 49 S.E. 294); Atlantic C. L. R. Co. v. Hall, 114 Ga. App. 538, 539 (1) ( 151 S.E.2d 914); General Motors Acceptance Corp. v. Bearden, 114 Ga. App. 392, 394 ( 151 S.E.2d 517). The evidence demanded the finding that the defendant owed the plaintiff the duty to exercise slight care for her safety.
The trial court erred in charging the jury on the issue of the defendant's failure to exercise ordinary care.
2. Did the evidence demand a finding that the defendant was not guilty of gross negligence? We are of the opinion that it did not. Whether the defendant's actions of throwing up her hands and screaming when confronted with an approaching truck in her line of traffic was the result of an emergency situation and excused her from being charged with gross negligence, was a question of fact and one for the jury. Shockey v. Baker, 212 Ga. 106, 110-111 ( 90 S.E.2d 654); Fetzer v. Rampley, 81 Ga. App. 806, 809 ( 60 S.E.2d 184); Ware v. Alston, 112 Ga. App. 627, 630 ( 145 S.E.2d 721); Young v. Tate, 112 Ga. App. 603, 606 ( 145 S.E.2d 747). This court cannot hold as a matter of law that the defendant's actions of throwing up her hands screaming demanded a finding that she exercised slight care.
Judgment reversed for the reasons stated in Division 1. Bell, P. J., Jordan, P. J., Hall, Pannell, Deen, Quillian and Whitman, JJ., concur. Felton, C. J., and Eberhardt, J., concur in Division 1 and dissent from Division 2.
1. I concur in the rulings in Division 1 of the majority opinion and in the judgment reversing the overruling of the motion for a new trial.
2. I dissent from Division 2 of the majority opinion and from the judgment of the majority affirming the denial of the defendant's motion for a judgment n.o.v. The cases cited by the majority in division 2 are not applicable in this case. They all involve ordinary negligence and most if not all involve facts which would authorize a finding that the defendant claiming shelter on the emergency doctrine was himself the "author" of the emergency. Nearly all of them were decided on the pleadings. The courts have gone too far, in my opinion, in leaving the question of whether there was gross negligence to a jury. In so doing they have disarmed the appellate courts and deprived them of their function to safeguard litigants from unjust, unreasonable and unsupported verdicts.
(a) In Shockey v. Baker, 212 Ga. 106, cited by the majority, the evidence held sufficient by the Supreme Court was sufficient to authorize the finding that because of the speed at which she was driving on the highway, the defendant, Mrs. Shockey, was the cause of the emergency and of course in such a case she could not obtain the advantage of the doctrine. The emergency in the instant case as a matter of law under the evidence was not caused by the negligence of the defendant. (b) The evidence did not authorize a finding that the defendant was guilty of gross negligence. First, the doctrine of the last clear chance does not apply to a situation such as existed in this case, the fact of a sudden emergency, due solely to the negligence of a third party, which placed both the plaintiff and defendant in a position of dire peril. Napier v. DuBose, 45 Ga. App. 661 ( 165 S.E. 773). While that opinion deals with a case where ordinary care was owed it states the principle controlling the question whether the doctrine is applicable in cases of sudden emergencies not due to the defendant's negligence.
(c) The evidence did not authorize a finding that the defendant was guilty of gross negligence, because the circumstances of this case show such an emergency as to excuse the exercise of conscious slight care because of the suddenness and nature of the emergency and because the consequent necessity of an instantaneous judgment and decision as to defensive action caused the loss of "presence of mind" on the part of the defendant. Ware v. Alston, 112 Ga. App. 627 ( 145 S.E.2d 721). In this case, as stated in the petition, a Pepsi Cola truck attempted to pass two trucks, got in defendant's lane of traffic and continued to drive toward defendant in her lane of traffic. The defendant slowed down to some degree, had a two-foot shoulder to her right, plus a ditch and a utility pole, couldn't make up her mind what to do and threw up her hands and screamed, whereupon her husband, who was dozing on the front seat, grabbed the steering wheel and pulled the car off the road, into the ditch and into the utility pole. "In Anderson v. Olson [ 106 Vt. 70], 169 A. 781, it was held: `Automobile driver's mere error in judgment, momentary inattention, or loss of presence of mind, does not indicate such indifference to duty owed guests or forgetfulness of latter's safety as to authorize guest's recovery for the resulting injuries on the ground of gross negligence.'" Tucker v. Andrews, 51 Ga. App. 841, 845 ( 181 S.E. 673). "`Anything which operates to deprive a person of ability to exercise his intellectual powers and guide his acts thereby will relieve him of an imputation of negligence that otherwise might arise from his conduct. Emergencies or sudden perils illustrate this proposition. The rule judicially stated is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.' Bryant v. Georgia R. c. Co., 162 Ga. 511, 517 ( 134 S.E. 319); Pollard v. Weeks, 60 Ga. App. 664, 672 ( 4 S.E.2d 722)." (Emphasis supplied.) Ware v. Alston, 112 Ga. App. 627, supra, p. 629; 47 ALR2d 119. Although whether certain specified conduct amounts to gross negligence is a question for the determination of the jury where the conduct is such that different minds might reasonably draw different conclusions therefrom, where such conduct is susceptible of but one inference — that it is not gross negligence — and reasonable minds could draw only such inference therefrom, then the absence of gross negligence is a question of law for the determination of the court. Arrington v. Trammell, 83 Ga. App. 107, 113 ( 62 S.E.2d 451); Conklin v. Jones, 95 Ga. App. 677, 683 ( 98 S.E.2d 638); Tatum v. Pruitt, 107 Ga. App. 172 ( 129 S.E.2d 388); Lewis v. Wilson, 111 Ga. App. 666, 670 ( 142 S.E.2d 852); Meeks v. Johnson, 112 Ga. App. 760 ( 146 S.E.2d 121); 8 AmJur2d 54, Automobiles and Highway Traffic, § 486.
In my judgment the defendant in this case was in the same position as if she had fainted in response to the emergency. It is unthinkable to me that she should be held to have been grossly negligent, or even guilty of ordinary negligence. A person shocked out of presence of mind does not have enough mind left to be guilty of any negligence, must less gross.
In Tidwell v. Tidwell, 92 Ga. App. 54 ( 87 S.E.2d 657) this court approved the following definition of gross negligence: "Gross negligence is equivalent to failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence or the absence of slight diligence, or the want of even scant care." (Emphasis supplied.) As was stated in a brief in a case not yet argued in this court: " It is not the reaction of a startled woman in an emergency situation," one which she did not create. For other cases holding as a matter of law that the evidence did not authorize a finding of gross negligence see: Harris v. Reid, 30 Ga. App. 187 ( 117 S.E. 256); Edwards v. Ford, 69 Ga. App. 578 ( 26 S.E.2d 306); Helms v. Leonard, 170 F. Supp. 143.
Judge Eberhardt concurs in the foregoing special concurrence and dissent.