Evans v. Caldwell

• Decision Date: 29 April 1932
• Docket Number: No. 22046.,22046.
• Citation: Evans v. Caldwell, 45 Ga.App. 193, 163 S.E. 920 (Ga. App. 1932)
• Parties: EVANS. v. CALDWELL.
• Court: Georgia Court of Appeals

45 Ga.App. 193

163 S.E. 920

EVANS.

v.CALDWELL.

No. 22046.

Court of Appeals of Georgia, Division No. 1.

April 29, 1932.

Syllabus by Editorial Staff.

Error from Superior Court, Whitfield County; M. C. Tarver, Judge pro hac.

Action by Mack Caldwell, by next friend, against W. R. Evans, by guardian ad litem.Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

Sapp & Maddox, of Dalton, and McDaniel, Neely & Marshall, and Harry L. Greene, all of Atlanta, for plaintiff in error.

R. Carter Pittman and Mann & Mann, all of Dalton, for defendant in error.

DUKE, J.

Mack Caldwell, by next friend, brought an action against W. R. Evans, by guardian ad litem, in the superior court of Whitfield county, to recover damages for alleged personal injuries sustained as the result of the negligent operation of an automobile, in which plaintiff was riding as a self-invited guest.Exception is taken to the judgment overruling the demurrer to the petition.A verdict and judgment were rendered for the plaintiff.Defendant's motion for a new trial was denied, and exception taken.Since the grounds of demurrer and the general grounds of the motion for a new trial raise substantially the same questions, these have been considered together.

It is urged by counsel for the defendant that the plaintiff had no valid cause of action, and was entitled to no recovery in this case, for the reason that the defendant's self-invited guest, on the fateful automobile ride described in the petition (for whose safety defendant was under the legal duty to exercise only slight care), was fully aware that the defendant, while operating the automobile, "was intoxicated and that he had poor muscular control over himself"; that he was aware that the defendant was operating the automobile at a grossly excessive rate of speed and was unable to control the car properly; that, being fearful of his own safety, plaintiff requested defendant to permit plaintiff to do the driving; that after a temporary stop on the way, where both got out of the car for a brief period of time, plaintiff, to use his own words, "took a chance on W. R. [the defendant] being able to make it, " and, reckless of his own safety, resumed his place in the car while relying on defendant's promise to drive more carefully; and that, subsequently, the defendant rammed the car into the guard fence of a bridge, completely wrecking the car, and seriously injuring the plaintiff.While it is true that the petition alleges that the defendant"was intoxicated and had poor muscular control over himself, " it does not affirmatively appear from any allegations of the petition, nor from theevidence adduced upon the trial, that defendant was intoxicated to the degree that rendered him incapable of operating or controlling the automobile properly.Moreover, there are other allegations of the petition, "that the defendant driver learned before he left Dalton that a girl, Miss Bonnie Jernegan, with...