Adams v. Smith

• Decision Date: 05 September 1973
• Docket Number: No. 2,No. 48286,48286,2
• Citation: 129 Ga.App. 850,201 S.E.2d 639
• Parties: Ted Lynn ADAMS v. James L. SMITH
• Court: Georgia Court of Appeals

Page 639

201 S.E.2d 639

129 Ga.App. 850

Ted Lynn ADAMS v. James L. SMITH.

No. 48286.

Court of Appeals of Georgia, Division No. 2.

Sept. 5, 1973.

Rehearing Denied Oct. 9, 1973.

Sharpe, Hartley & Newton, W. Ward Newton, Lyons, for appellant.

Farrar & Farrar, Curtis Farrar, Douglas, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Lowell Smith, plaintiff, sued Ted Lynn Adams, defendant, because of injuries received by plaintiff when he fell from the front fender of an automobile driven by defendant, as they were engaged in hunting rabbits. Verdict and judgment were rendered in plaintiff's favor and defendant appeals. Defendant's brief sets forth his version of the evidence, but in cases such as this, where a verdict and judgment are rendered in the lower court, and approved by the trial judge, the evidence must be construed most favorably towards the prevailing party so as to support the verdict, and all conflicts and inferences arising from the evidence must be construed in favor of the prevailing party. See Boatright v. Rich's, 121 Ga.App. 121, 173 S.E.2d 232; Sharp v. Thomas, 125 Ga.App. 137, 186 S.E.2d 589. And in such construction of the evidence, the jury may have believed part of the testimony of a witness and may have disbelieved other parts of his testimony. See Adams v. Adams, 218 Ga. 67, 78, 126 S.E.2d 769; Powell v. Blackstock, 64 Ga.App. 442(5), 13 S.E.2d 503; Campbell v. State, 157 Ga. 233, 235, 121 S.E.2d 306.

In light of the foregoing, there was evidence in this case sufficient to show that as plaintiff was perched on the front fender of the car, the speed was accelerated and plaintiff hollered to defendant to slow down, and another passenger likewise requested defendant to slow down; that the defendant heard these requests, but continued at the greater rate of speed for about 500 years; and then applied ('slammed on') the brakes, and caused plaintiff to fall into the road where the car ran over him; that plaintiff hollered again and asked defendant not to back the car over plaintiff, but defendant deliberately backed over him, and plaintiff was hurt worse in being backed over by the car than he was before. (Tr. pp. 11, 28, 29, 31, 47, 48, 50, 52, 53, 59, 60 and 63). Held:

1. Defendant contends that plaintiff was required to prove wilful and wanton negligence in order to recover. Even if plaintiff was required to prove that degree of negligence, such wilful and wanton negligence may be proven without proof that defendant deliberately and intentionally committed the wrongful acts complained of. If a defendant acts with that 'entire absence of care which would raise the presumption of conscious indifference' to consequences, that will suffice to prove wilful and wanton negligence. Frye v. Pyron, 51 Ga.App. 613(3), 181 S.E. 142, and cases there cited.

2. But in this case, when plaintiff hollered to and requested that speed be reduced, and defendant continued at the same high rate of speed, the jury would have been authorized to determine that the relationship of host-driver and guest-passenger was changed, and that thereafter the plaintiff was being transported against his will, and the jury could have determined that thereafter plaintiff was only required to prove simple negligence in order to recover. Blanchard v. Ogletree, 41 Ga.App. 4(2), 152 S.E. 116; Anderson v. Williams, 95 Ga.App. 684, 686, 98 S.E.2d 579; Dixon v. Merry Bros. Brick & Tile Co., 56 Ga.App. 626, 631(3), 193 S.E. 599. We emphasize that this would have been a question for solution by the jury.

3. Defendant contends plaintiff cannot recover because both plaintiff and defendant were engaged in an illegal enterprise, hunting rabbits from an automobile, etc. In support, he cites one case only, to wit: Wallace v. Cannon, 38 Ga. 199, where it was held that one who was violating the supreme law of the land by engaging in acts of warfare against the United States of America could not recover; and this case is followed by Martin v. Wallace, 40 Ga. 52, 53, which is also a case of making war on the United States of America. Hunting rabbits from an automobile cannot be equated with making war on the United States, and is not in violation of the supreme law of the land. The law as to engagement in illegal enterprises and denial of recovery to the parties is usually applied in contractual cases, and most particularly to equity cases. Code §§ 37-104, 37-112. A well known rule in equity is that the complainant must come into court with clean hands, otherwise the law will leave him where it finds him. Of course, this is not a contract case, nor a case in equity. This court has correctly set forth the rule in Gaines v. Wolcott, 119 Ga.App. 313, 167 S.E.2d 366, wherein an unmarried minor sought an illegal abortion, and was allowed a recovery against the physician, even though both were engaged in an illegal act, and at page 318, 167 S.E.2d at page 370, it is pertinently stated: 'But a person does not become an outlaw and lose all rights by doing an illegal act.' (Emphasis supplied.) The Supreme Court granted certiorari in the Gaines case, and affirmed this court in Wolcott v. Gaines, 225 Ga. 373, 169 S.E.2d 165.

Additionally, in this case, the jury could have concluded that the rabbit hunting had ceased, because defendant was deliberately trying to dislodge plaintiff from the front fender of the car, by running at a high rate of speed, not responding to the hollered requests to slow down, and when the high speed did not dislodge him, deliberately 'slamming on' the brakes, which threw plaintiff into the road.

The lower court did not err in refusing to charge defendant's written request, or otherwise instruct the jury, that the court will not lend its assistance to a party seeking to recover of another with whom he is engaged in an illegal enterprise.

4. The jury, after deliberating for awhile, returned to the courtroom and stated to the court: 'We would like to ask does the defendant-does he have insurance and what kind and how much-that we may look at it.' The trial judge promptly and tersely replied: 'You may not.' This as effectively squelched the question of insurance as would have the court's acceding to request of defendant's counsel to instruct the jury that the existence or non-existence of insurance was not relevant and could not be considered in the course of the jury's deliberations. There was no error in failing to instruct the jury in the language requested by the defendant; nor in failing to grant his motion for mistrial, premised on the allegedly improper conduct of the jury in this connection.

5. The jury's verdict was as follows: 'We the jury reach a verdict that Ted Adams, the defendant, was more ca(re)less than the plaintiff, James Lowell Smith, and the defendant should pay the sum of $5,000 to plaintiff.'

Defendant moved for a mistrial because the verdict was not in proper form. It is clear that the jury rendered a verdict for plaintiff and against defendant for $5,000, and the remainder is mere surplusage and may be disregarded. See Fraser v. Jarrett, 153 Ga. 441(7), 112 S.E. 487; Patterson v. Fountain, 188 Ga. 473(1), 4 S.E.2d 38. Presumptions favor the validity of verdicts and a construction, if possible, will be given which will uphold them. If ambiguous and susceptible of two constructions, that construction which would uphold the verdict is to be applied. Haughton v. Judsen, 116 Ga.App. 308, 310, 157 S.E.2d 297.

Further, if defendant was dissatisfied with the form of verdict, a motion for mistrial was not the proper way to correct the error; in such case it is necessary to move the court to direct the jury to return to the jury room and render a verdict in the proper form. Tift v. Towns, 63 Ga. 237(5); Denham v. Shellman Grain Elevator, 123 Ga.App. 569(5), 181 S.E.2d 894.

6. No error was committed by the trial court in its failure to direct a verdict for defendant, based upon the contention that plaintiff and defendant were engaged in an illegal enterprise at the time of the injuries. (See discussion in Division 3 above.) In his motion for judgment notwithstanding the verdict, and in his brief, defendant seeks to enlarge on his motion for directed verdict, by adding that such recovery cannot be had merely upon proof of 'carelessness' by the defendant. Pretermitting the soundness of this contention, 'carelessness' was not mentioned in the motion for directed verdict, and could not thereafter be added into the motion for judgment notwithstanding the verdict, nor in the brief before this court. Code Ann. § 81A-150(b) (§ 50, CPA; Ga.L.1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248) requires that the motion for judgment notwithstanding the verdict be made 'in accordance with his motion for a directed verdict.' Turk v. Jackson Electric Membership Corp., 117 Ga.App. 631(1), 161 S.E.2d 430.

7. Defendant complains because the trial judge did not instruct the jury that plaintiff could not recover unless he proved wilful and wanton negligence against defendant. The transcript shows (T. 107) that the trial judge charged as follows: 'For plaintiff to recover in this case it would be necessary for you to find that defendant is guilty of gross negligence proximately causing defendant's injuries. Gross negligence is equivalent to failure to exercise even slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act of omission respecting legal duties of an aggravating 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). In Frye v. Pyron, 51 Ga.App. 613(3), 181 S.E. 142, supra, it is held: 'Gross negligence and wilful and wanton negligence are equivalent when the allegations of fact set up in the petition show 'that entire absence of care which would raise the presumption of conscious indifference . . .".

Further, as...