Barnum v. Martin

• Decision Date: 02 September 1975
• Docket Number: No. 3,50881,Nos. 50837,s. 50837,3
• Citation: 219 S.E.2d 341,135 Ga.App. 712
• Parties: J. E. BARNUM et al. v. Beverly A. MARTIN et al. CITY OF ATLANTA v. Beverly A. MARTIN et al
• Court: Georgia Court of Appeals

Page 341

219 S.E.2d 341

135 Ga.App. 712

J. E. BARNUM et al. v. Beverly A. MARTIN et al.

CITY OF ATLANTA v. Beverly A. MARTIN et al.

Nos. 50837, 50881.

Court of Appeals of Georgia, Division No. 3.

Sept. 2, 1975.

Rehearing Denied Sept. 17, 1975.

Syllabus by the Court

1. The trial court did not err in rendering judgment on the jury's verdict finding appellant-Barnum guilty of gross negligence and in denying his motion for judgment notwithstanding the verdict.

2. Timely ante litem notice was given to appellant-City of Atlanta.

3. The trial court did not err in rendering judgment of the jury's verdict finding appellant-City of Atlanta guilty of ordinary negligence and in denying its motion for directed verdict and judgment notwithstanding the verdict.

Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, Daryll Love, Atlanta, for appellant Barnum.

Henry L. Bowden, Ralph H. Witt, Atlanta, for appellant City of Atlanta.

Hansell, Post, Brandon & Dorsey, Jule W. Felton, Jr., W. Lyman Dillon, Atlanta, for appellee.

Beverly Ann Martin, appellee in these companion cases, filed suit by next friend against the appellants-Barnum and Southern Bell Telephone & Telegraph Company for injuries she sustained when the automobile in which she was a passenger struck a telephone pole. Southern Bell moved for summary judgment which was properly granted. Southern Bell Telephone & Telegraph Co. v. Martin, 229 Ga. 881, 194 S.E.2d 910. After Southern Bell was dismissed as a party-defendant, appellee, who had become an adult pursuant to Age of Majority Act, gave ante litem notice to appellant-City of Atlanta as required by Code Ann. § 69-308 within six months of attaining her majority. Motion was subsequently made to add the City of Atlanta as a party defendant pursuant to Code Ann. § 81A-121 and this was granted. The jury returned a verdict in favor of appellee upon which judgment was entered. Both appellants appeal on the ground that it was error to enter judgment on the jury's verdict and to deny their respective motions for judgment notwithstanding the verdict. Also, appellant-City of Atlanta contends that it did not receive timely ante litem notice, upon which it bases its appeal that it was error to add the municipality as a party- defendant.

DEEN, Presiding Judge.

1. In this action by a guest passenger against her host driver, the testimony with regard to the speed of the automobile at the time of the accident was in conflict. It is uncontested however that appellant-Barnum's car left the road and struck a telephone pole and a tree. 'Evidence of the force of the impact of a collision, or as to the distance which the automobile that caused the injury traveled for the point to the collision until it stopped, may of itself, and in connection with other circumstances, be sufficient to warrant a finding of the jury of negligence as to speed.' Shockey v. Baker, 212 Ga. 106, 110, 90 S.E.2d 654, 657. The evidence here would clearly support a finding of excessive speed.

However, in Georgia a guest passenger can recover for injuries sustained in an accident only if the host driver is guilty of gross negligence. Epps v. Parrish, 26 Ga.App. 399, 106 S.E. 297. It is settled law in this state that mere violation of speed laws alone does not amount to gross negligence. Peavy v. Peavy, 36 Ga.App. 202, 136 S.E. 96. However, speed coupled with other circumstances and amount to gross negligence. Parker v. Bryan, 93 Ga.App. 88, 91 S.E.2d 49. The evidence here is sufficient to support a jury finding that appellant-Barnum was guilty of excessive speed without keeping a proper lookout, excessive speed under existing conditions of the road and inattentiveness in driving. Rigdon v. Williams, 132 Ga.App. 176, 207 S.E.2d 591. 'When facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable men as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury.' Wood v. Olson, 104 Ga.App. 321, 322, 121 S.E.2d 677, 678. In argument that it was error to enter judgment on the jury's verdict is without merit.

With regard to the denial of appellant-Barnum's motion for judgment notwithstanding the verdict, 'an appellate court must affirm the trial court if there is any issue to be submitted to the jury and any evidence to sustain the verdict.' Simeonides v. Zervis, 127 Ga.App. 506, 507, 194 S.E.2d 324, 326. 'If the evidence presents jury questions on material issues a motion for judgment n.o.v. will not lie.' Mississippi Tank Co. v. White, 108 Ga.App. 609(2), 134 S.E.2d 66. In the case at bar there were jury questions on material issues and evidence to sustain the verdict on those issues. The verdict being authorized by the evidence, overruling of the motion for judgment notwithstanding the verdict was not error. Johnson v. Fulmer, 129 Ga.App. 317(2), 199 S.E.2d 639.

2. Appellant bases two enumerations of error upon the trial court's finding of timely ante litem notice to it by appellee. Code Ann. § 69-308 requires such notice to the municipality within six months of the happending of the event upon which such claim is predicated. At the time appellee was injured she was a minor and attained her majority only on the effective date of the Age of Majority Act, Ga.L.1972, pp. 193-199. We have held that the six-months limitation found in Code Ann. § 69-308 is a statute of limitation. City of Barnesville v. Powell, 124 Ga.App. 132, 183 S.E.2d 55. And where the person to whom the claim belongs is a person under a disability as set forth in Code Ann. §§ 3-801 and 3-1005 the statute of limitation will be tolled until the disability is removed. Mayor etc. of Athens v. Schaefer, 122 Ga.App. 729, 178 S.E.2d 764. Minority is such a disability and a statute of limitation will be tolled until the infant attains majority and becomes sui generis. Jordan v. Thornton, 7 Ga. 517. Appellee therefore would have until six months after such time as her disability was removed to give notice to the City of Atlanta. She became sui generis on July 1, 1972, and gave notice on December 29, 1972, within the six-month limit. However, appellee had brought suit through her next friend on the cause of action approximately four years before giving notice to the municipality of her claim. 'The appointment of a guardian does not operate to start the statute of limitation running against the minor or the guardian in cases where the title to the cause of action is in the minor.' City of Barnesville, supra. The statute will not run against a minor represented in litigation by next friend or guardian ad litem. Shell v. Watts, 125 Ga.App. 542, 188 S.E.2d 269. Any doubt that the statute of limitation will not run against a minor plaintiff who sues through next friend is resolved by our decision in Jones v. Hartford Accident & Indemnity Co., 132 Ga.App. 130, 207 S.E.2d 613 where it was held that 'the disability of infancy insofar as Code § 3-801 is concerned is only removed when the party affected reaches his lawful majority.' Id. at 134, 207 S.E.2d at 616. (Emphasis supplied.) Since appellee was a minor when the accident occurred upon which appellant-City of Atlanta's liability is predicated, she had until six months after attaining her majority to give notice to the municipality. This was done. It was not error for the trial court to add appellant-City of...