Freeman v. Martin

• Decision Date: 26 July 1967
• Docket Number: No. 42655,2,Nos. 1,3,42655,s. 1
• Parties: James FREEMAN v. Larry MARTIN
• Court: Georgia Court of Appeals

Page 511

156 S.E.2d 511

116 Ga.App. 237

James FREEMAN v. Larry MARTIN.

No. 42655.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 26, 1967.

Certiorari Denied Sept. 7, 1967.

Syllabus by the Court

1. There is no liability for negligence, or gross negligence, of an operator of a motor vehicle who, while driving, is suddenly and unexpectedly stricken by some illness, such as a fainting spell, or a heart attack, which renders him unconscious or incapable of controlling the vehicle.

2. One who voluntarily rides in a motor vehicle operated by another who is obviously and palpably under the influence of intoxicating liquors, assumes the risk of whatever may happen as a result of the driver's condition.

James Freeman brought suit against Larry Martin alleging that on September 6, 1962 he was riding as a passenger in an automobile then being operated by the defendant and that as they approached a street intersection where the street on which the car was driven turned to the south, 'the defendant utterly collapsed and thereafter made no further effort to attempt to steer the said vehicle, but nevertheless, caused the same to continue being accelerated along said roadway by having his foot on the accelerator,' and that the automobile 'proceeded past the point of intersection and failed to turn properly to the south * * * but continued across said roadway into the path of an oncoming car, and finally crashed into a utility pole situated on the northeasterly side' of the street. Plaintiff alleges that at the time defendant collapsed and failed to continue steering the automobile he attempted to gain control of it and by his efforts managed to avoid a collision with the oncoming car. The car was the property of plaintiff and he seeks damages for injuries to it occasioned by the crash into the utility pole and for personal injuries which he suffered.

On trial of the case plaintiff was the only witness as to any facts concerning the occurrence and as to how it may have happened. He testified that Martin was driving the car 'at a normal rate within the speed limit' and while on the right side of the road suddenly and unexpectedly 'slumped in the seat' over the steering wheel. Seeing this situation, plaintiff reached over and pulled him back, and 'when I did his head flew back and his eyes were back in his head.' He attempted to speak to Martin, saying 'Larry, you're kidding, aren't you?' but received no response. Martin was unconscious from the time he slumped over the wheel. Freeman took hold of the steering wheel and attempted to apply the brakes, but Martin's foot 'jammed the gas pedal to the floorboard,' and the car speeded up so that it was not possible to make the turn to the south and it struck a utility pole.

He also testified that both he and Martin had engaged in drinking whiskey, each having had at least three or four drinks of an undetermined quantity, from the time they left a high school football field about midnight after the game until shortly before the accident happened, about one o'clock. Each had his own bottle of bourbon. They were drinking directly from the bottle, without chaser or mixer. Plaintiff could give no estimate as to the quantity that either took as a drink. But he knew of Martin's bottle and they were drinking together. The last drink had been consumed a short time before the accident when they had stopped at the home of a girl. Up to that time Freeman had been driving the car, but when they started to leave Martin got under the steering wheel, wanting to drive, and Freeman permitted him to do so.

At the conclusion of the plaintiff's evidence the trial court sustained a motion for nonsuit and the appeal is from that judgment.

Wallace, Wallace & Driebe, Charles J. Driebe, Albert B. Wallace, Jonesboro, for appellant.

Alston, Miller & Gaines, Ronald L. Reid, Atlanta, for appellee.

EBERHARDT, Judge.

As was suggested by the trial judge in connection with his ruling on the motion for nonsuit, there are two constructions that might be placed on this evidence. We find ourselves in agreement with him that under either construction a recovery by the plaintiff is not authorized, and we affirm the grant of the nonsuit.

1. If we construe the evidence as establishing that Martin suddenly and unexpectedly lost consciousness for some unforeseen reason, such as a fainting spell, a heart attack, or the like, plaintiff could not recover because there is a failure to show any negligence on the part of the defendant.

By the great weight of authority, if not universally, the rule is that there is no liability for negligence or for gross negligence on the part of an operator of a motor vehicle who, while driving, is suddenly stricken by a fainting spell, or loses consciousness ¹ from some unforeseen reason. Such loss of consciousness is a complete defense to an action based upon negligence, and if it appears from the plaintiff's evidence he fails to demonstrate a right to recover, making the nonsuit a proper disposition of the matter.

In Edwards v. Ford, 69 Ga.App. 578, 579, 26 S.E.2d 306, the driver testified: 'I was driving about 25 to 30 miles an hour. The last thing I remember we were humming and riding down the road * * * I did not take my eyes off the road * * * I just don't remember anything happening after we passed a certain place on the road. * * * I became unconscious, that is the reason I lost control of the car and went into the ditch. * * * I just went blank * * *.' A verdict for the defendant was approved, Judge Felton observing that in his opinion it was demanded by the evidence.

In Annis v. Georgia Power Co., 42 Ga.App. 754, 157 S.E. 242, where it appeared that the driver 'suddenly and all at once * * * lapsed into unconsciousness' it was held that the sudden illness and unconsciousness was an independent intervening cause of the collision with a streetcar that almost immediately followed.

Where one 'suffered an attack of vertigo or fainting spell and collapsed' while crossing a railroad track, though a trespasser, his injury was 'brought about by peculiar facts and circumstances which relieve him from the guilt of a lack of ordinary care in thus exposing himself.' He was not negligent. Southern Railway Co. v. Kelley, 52 Ga.App. 137, 138, 182 S.E. 631, 633.

Cases presenting facts strikingly similar to that made by plaintiff's testimony here are Armstrong v. Cook, 250 Mich. 180, 229 N.W. 433, where the driver lost consciousness or fainted as she started to cross an intersection and a judgment against her for damages was reversed because no negligence on her part was shown; Soule v. Grimshaw, 266 Mich. 117, 253 N.W. 237, holding a driver not liable when he lost consciousness and crossed to the wrong side of the road; Harrington v. H. D. Lee Mercantile Co., 97 Mont. 40, 33 P.2d 553, and Weldon Tool Co. v. Kelley, 81 Ohio App. 427, 76 N.E.2d 629, where the driver suffered a heart attack and lost consciousness therefrom, and a similar result is found in Cohen v. Petty, 62 App.D.C. 187, 65 F.2d 820. In Wishone v. Yellow Cab Co., 20 Tenn.App. 229, 97 S.W.2d 452, the driver suffered a sudden epileptic seizure and lost control of the cab. For other cases in which the principle is found, see Waters v. Pacific Coast Dairy, 55 Cal.App.2d 789, 131 P.2d 588; Ford v. Carew & English, 89 Cal.App.2d 199, 200 P.2d 828; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785; Livaudais v. Black, 13 La.App. 345, 127 So. 129; Meyers v. Tri-State Auto Co., 121 Minn. 68, 140 N.W. 184, 44 L.R.A.,N.S., 113; Holmes v. McNeil, 356 Mo. 846, 204 S.W.2d 303; Abbott v. Hayes, 92 N.H. 126, 26 A.2d 842; Lagasse v. Laporte, 95 N.H. 92, 58 A.2d 312; Journey v. Zawish, 11 N.J.Misc. 482, 167 A. 7; Rasbach v. Cassidy, 263 App.Div. 1047, 33 N.Y.S.2d 762; LaVigne v. LaVigne, 176 Or. 634, 158 P.2d 557; Lobert v. Pack, 337 Pa. 103, 9 A.2d 365; Espeland v. Green, 74 S.D. 484, 54 N.W.2d 465; Driver v. Brooks, 176 Va. 317, 10 S.E.2d 887; Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A.L.R. 460.

The basis for this rule is that the acts of the driver under these circumstances are not his voluntary acts, and are thus not the kind of acts for which he can be held.

2. If we construe the evidence as showing that Martin had consumed enough whiskey to cause him to 'pass out' by slumping over the steering wheel while driving the car, rather than it having been caused by a sudden, unexpected illness, and that this was what caused him to lose control of the vehicle, we have a plain case of gross negligence on his part. But under the circumstances here we conclude that Freeman assumed the risk of whatever negligence and its consequences that might flow from Martin's drinking.

We dealt with a similar but not an identical problem in Sparks v. Porcher, 109 Ga.App. 334, 136 S.E.2d 153, but in any event the opinion in that case was by only four judges, with one specially concurring in the judgment, and with four others dissenting. It is not, therefore, binding authority and is the law of that case only.

Here Freeman owned the automobile having a right to control it, ² and he alleges that his status was that of a passenger. He knew of Martin's drinking throughout the evening, for they had been doing it together. It is inescapable that if Martin 'passed out' at the wheel within a few blocks after getting under it his condition was such as to put any who might ride with him on notice of it. With this knowledge Freeman assumed the risk when he voluntarily entered the car with Martin at the wheel.

Freeman had negligently entrusted his automobile to an incompetent driver with knowledge of the incompetence, and thus became liable himself for any injury which Martin might negligently inflict upon a third party in the operation of it. NuGrape Bottling Co. v. Knott, 47 Ga.App. 539, 171 S.E. 151; Crisp v. Wright, 56 Ga.App. 338, 192 S.E. 390. He is in no position to recover from Martin. Since they had been drinking ...