Clements v. Long, 65468

• Decision Date: 16 June 1983
• Docket Number: No. 65468,65468
• Citation: 167 Ga.App. 11,305 S.E.2d 830
• Parties: CLEMENTS et al. v. LONG et al.
• Court: Georgia Court of Appeals

Page 830

305 S.E.2d 830

167 Ga.App. 11

CLEMENTS et al. v. LONG et al.

No. 65468.

Court of Appeals of Georgia.

June 16, 1983.

Robert H. Reeves, Americus, for appellants.

Benjamin F. Easterlin IV, Americus, for appellees.

McMURRAY, Presiding Judge.

This is a wrongful death action. Summary judgment was granted in favor of defendants.

On April 18, 1981, Billy Earl Clements was a passenger in a pickup truck owned by James Emmett Long and Mavis Stevens Long, d/b/a Long's Welding and Machine Shop, being driven by John G. Long. John G. Long was the son of the above persons (albeit emancipated--age 36) but was an employee of the machine shop and was driving with the express consent and knowledge of said owners, his mother and father. The pickup truck was provided to John G. Long for purposes of going to and from work and making service calls on behalf of the business and his personal purposes. On the date in question Billy Earl Clements was a guest passenger in the truck being driven by John G. Long when the driver attempted and did elude certain police officers attempting to stop him (the officers having wrecked the police car). However, either shortly before or after the police car wrecked John G. Long lost control of the pickup truck, and Billy Earl Clements was killed when he was thrown from the vehicle. John G. Long made an admission against his interest to the divorced wife of the decedent that "he lost control of the truck and that he was just so involved in driving the truck and maintaining ... control that he just couldn't--he didn't know what happened. It just happened so fast ..."

The ex-wife, as next friend and natural guardian of the two children of herself and the decedent, Billy Earl Clements, brought an action in three counts against the defendants John G. Long, James Emmett Long and Mavis Stevens Long, d/b/a Long's Welding and Machine Shop. Plaintiff's complaint alleges that the death of Billy Earl Clements resulted from the negligence of the driver of the vehicle, defendant John G. Long. The complaint contends that the other defendants are liable on theories of respondeat superior and the family purpose car doctrine. Both John G. Long and James Emmett Long were served and separately answered the complaint admitting the above circumstances and facts surrounding the death of Billy Earl Clements. However, Mavis Stevens Long was not served and is not a party to this action. In addition, the defendants in their separate answers each admitted paragraph 5 that the defendant John G. Long was driving the vehicle "in a negligent manner" on the date in question and "by his negligence did cause said vehicle to overturn resulting in the death of Billy Earl Clements, deceased." Notwithstanding that they admitted the above they then in their answer sought to neither admit nor deny this averment "for lack of sufficient information to form a belief as to the truth thereof." Each also added a defense of assumption of the risk by the decedent and that his death resulted from the known danger of the manner in which defendant John G. Long was driving the vehicle, the same being imputable to the plaintiffs. Another defense was that the death of plaintiffs' decedent was the result of comparative negligence, that is, his negligence was greater than any negligence of the defendant John G. Long, the same being imputable to the plaintiffs.

After discovery the defendants filed their motion for summary judgment. In support of this motion, by affidavit, John G. Long deposed much of the above facts that he had possession, as an employee, of the truck owned by the machine shop which was provided to him for purposes of going to and coming home from work and for making service calls away from the business establishment being "often required to perform services out in the county or in surrounding towns," having permission to utilize this truck for personal use but the sole basis for the possession of the truck was the furtherance of the business. On the evening prior to the decedent's death he and the decedent met at an establishment and at approximately 3:00 a.m. on April 18, 1981, left the establishment together and he was driving the pickup truck when he noticed police officers following them. He told the passenger "we might as well try to outrun them." The decedent replied to him, "he would do whatever I wanted to do, that he would go along with my suggestion, and he encouraged me to go faster," that he encouraged me "to go as fast as I could and ... that he was with me all the way," acknowledging "to me his awareness that I was going to travel at a high speed in an attempt to outrun the police before I began to do so." Affiant further deposed that decedent "did not attempt to warn me against any hazard from travelling at a high rate of speed ... did not ask me not to speed, nor did he attempt to stop me from doing so," and "did not ask me to let him out of the vehicle before I began speeding; rather he stated his willingness to go along with me." He then added "I lost control of our vehicle and we wrecked." He then added that at no time during the events of this incident was he performing any services on behalf of the business or furthering the business in any way, his activities being "totally personal and completely unrelated" to his employment. Summary judgment was then granted in favor of the defendants, and plaintiffs appeal. Held:

1. "Issues of negligence, including the related issues of assumption of risk, lack of ordinary care for one's own safety, lack of ordinary care in avoiding the consequences of another's negligence and comparative negligence, are ordinarily not susceptible of summary adjudication whether for or against the plaintiff or the defendant, but must be resolved by a trial in the ordinary manner." Wakefield v. A.R. Winter Co., 121 Ga.App. 259, 174 S.E.2d 178. See also Malin v. Jaggers, 134 Ga.App. 806, 216 S.E.2d 666, citing Wakefield v. A.R. Winter Co., supra. It is further stated in Wakefield v. A.R. Winter Co., supra, 121 Ga.App. at page 260, 174 S.E.2d 178, that even where there is no dispute as to the facts it is, however, "usually for the jury to say whether the conduct in question met the standard of the reasonable man," citing and quoting textbook law and that questions necessitating a decision as to whether a given state of facts shows the lack of ordinary care for one's own safety which will bar recovery (assumption of the risk cases), or comparative negligence which will reduce recovery, are generally for the jury, citing Stukes v. Trowell, 119 Ga.App. 651, 168 S.E.2d 616 and McCurry v. Bailey, 224 Ga. 318, 162 S.E.2d 9, revg. Bailey v. McCurry, 117 Ga.App. 100, 159 S.E.2d 425.

In the case sub judice the defendant driver has in one breath admitted (in the pleadings) his negligence and then seeks to deny same as lacking sufficient information. He then made certain admissions against interest (prior to suit) to the divorced wife of decedent (mother of plaintiff children) that he had lost control of the truck and he was just so involved in the driving and maintaining control that he just couldn't or didn't know what happened, that it "just happened so fast." Now after deliberation and being sued he seeks to establish in his testimony by affidavit that the decedent assumed all the risk of attempting to elude the police officers and was willingly a participant in this activity and the resulting wreck due to his loss of...