Caskey v. Underwood, s. 34918

• Decision Date: 04 December 1953
• Docket Number: 2,34919,Nos. 1,Nos. 34918,s. 34918,s. 1
• Citation: 79 S.E.2d 558,89 Ga.App. 418
• Parties: CASKEY v. UNDERWOOD. UNDERWOOD v. CASKEY
• Court: Georgia Court of Appeals

Page 558

79 S.E.2d 558

89 Ga.App. 418

CASKEY v. UNDERWOOD.

UNDERWOOD v. CASKEY.

Nos. 34918, 34919.

Court of Appeals of Georgia, Division Nos. 1, 2.

Dec. 4, 1953.

Rehearing Denied Dec. 17, 1953.

SYLLABUS BY THE COURT.

1. The Georgia death statute does not authorize a recovery by a guest from his host because of the failure of the host to exercise ordinary care. The court did not err in sustaining the general demurrer to count three.

2. Count one was predicated on the ordinary negligence of the defendant, in that he was charged directly with negligence in furnishing an automobile with slick tires to an incompetent and inexperienced driver, and was not predicated on the theory that the defendant's son was the agent of the defendant under the family car doctrine, and that the host and guest relationship existed. The court did not err in overruling the general demurrer to count one.

3. It is not necessary to rule on various assignments of error involving the charges on count one.

4. The court erred in defining gross negligence as the entire absence of care. Cases holding to the contrary are overruled.

Mrs. Laura J. Caskey sued E. H. Underwood under the wrongful-death statute to recover damages for the death of her unmarried minor son, Grandison Marion Caskey, III, who allegedly died as the result of injuries sustained while riding as a guest of the defendant's minor son. The action was brought in three counts. Count one sought recovery on account of the ordinary negligence of the defendant, charged directly against the defendant by reason of his turning over the automobile to an inexperienced and incompetent driver while equipped with slick tires. Count two sought recovery on account of the gross negligence of the defendant's minor son under the family-car doctrine, which count charged liability on the part of the defendant under the theory of respondent superior. Count three sought recovery on account of the negligence of the defendant's minor son under the theories of family-car doctrine and respondeat superior, it being contended by the plaintiff that the guest rule does not apply to an action under the wrongful-death statute, and it being contended that the rule under that statute is the duty to exercise ordinary care on the part of the son of the defendant, the host on the occasion in question. The defendant demurred to counts one, two and three of the petition. The court overruled the demurrers to counts one and two, and sustained the demurrers to count three and dismissed that count. The jury found for the defendant. The plaintiff's amended motion for new trial was denied. The plaintiff excepts here to the order sustaining the demurrers to count three and to the denial of her motion for new trial. By cross-bill the defendant excepts to the overruling of the demurrers to count one and the failure to give a requested charge on count one.

John L. Green, Rupert A. Brown, Raymong Lester, James Barrow, Athens, for plaintiff in error.

Erwin, Nix, Birchmore & Epting, Athens, for defendant in error.

FELTON, Judge.

1. The court did not err in sustaining the general demurrer to count three. The contention of the plaintiff in error is: that the death statute creates a new statutory cause of action unknown to the common law and independent of common-law concepts of liability; that the statute prescribes who may recover, the circumstances under which recovery may be had, and the amount which may be recovered; that the words 'other negligence' in Code, § 105-1301 mean ordinary negligence; and that the 'guest rule' with its requirement of gross negligence in order to impose liability, being a rule of common law, has no application in a case where death results to the guest and an action is brought under the death statute. We agree with the plaintiff in error that the death statute affords a new right of action and is not a provision for a survival of the decedent's cause of action. Thompson v. Watson, 186 Ga. 396, 197 S.E. 774, 117 A.L.R. 484, and cases cited; 'Actions for Wrongful Death in Georgia,' Charles J. Hilkey, 9 Georgia Bar Journal, 368. In addition to various reasons given as to why the right of action is not a survival of a decedent's cause of action, one other might be added, and that is that an individual can have no cause of action for his own death. However, this new right of action, Code Ann. § 105-1307, Ga.L. 1887, pp. 43-45, is founded on the premise that the deceased would have been entitled to an action against the wrongdoer if death had not ensued, based on the breach of a duty owed to the deceased at the time of the injury. The original statute included such a provision. Cobb's Digest, p. 476. This provision was omitted from the Code of 1863 and subsequent Codes, but the general rule reads this requirement into the statutes. 16 Am.Jur. 61, § 82. Georgia recognizes this requirement. Berry v. Northeastern Railroad, 72 Ga. 137(1); Thompson v. Watson, supra. It follows that the basis of the cause of action, even though it is a new one, is the violation of a duty owed by the wrongdoer to the deceased. Atlantic, Valdosta & Western R. Co. v. McDilda, 125 Ga. 468, 54 S.E. 140. The specific question for decision just here is what is the duty the violation of which gives rise to the cause of action. The plaintiff in error contends that the death statute provides that this duty is that of ordinary care, and she cites as authority Western & A. R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37. In that case the Supreme Court stated 175 Ga. at page 10, 165 S.E. at page 41: 'The language 'other negligence,' * * * embraces a homicide resulting from any negligence other than criminal negligence, and includes a homicide resulting from simple or ordinary negligence.' This is not a ruling that the statute authorizes actions merely for criminal or ordinary negligence. We think the proper construction of the statute is that it gives a right of action for damages for any negligence which was actionable at common law. The act did not undertake to state or define what 'other negligence' meant. The common-law rule governing the facts alleged in count three, the duty of host to guest in an automobile, is that of slight care. Slaton v. Hall, 168 Ga. 710, 148 S.E. 741, 73 A.L.R. 891. Attack is made on the rule as approved in the Slaton v. Hall case, and the writer, speaking for himself alone, seriously doubts the correctness and soundness of the rule, but this court is powerless to change it. For the origin of the rule, see the cases cited in Slaton v. Hall, supra, and see the cases cited in Lee v. Lott, 50 Ga.App. 39, 42, 177 S.E. 92. It thus appears that the death statute does not provide for an action based on ordinary negligence in a guest case, and the court correctly sustained the general demurrer to the third count.

2. The court did not err in overruling the general demurrer to count one, which sought recovery on account of negligence charged directly to the defendant in that he allegedly turned over an automobile with slick tires to an incompetent and inexperienced driver. The only point argued is that the law required only slight care on the part of the host, and required gross negligence on the part of the host to show liability. As stated before, this count was based on negligence charged directly to the defendant, and not to him through his son as agent under the family-car doctrine. Since there was no allegation of agency under the family-car doctrine, and the allegations of count...