Frye v. Pyron
| Decision Date | 02 July 1935 |
| Docket Number | No. 24846.,24846. |
| Parties | FRYE. v. PYRON. |
| Court | Georgia Court of Appeals |
Rehearing Denied Aug. 5, 1935.
Syllabus by Editorial Staff.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Petition by Gertrude Pyron against A. H. Frye. To review a judgment overruling his demurrer to the petition, defendant brings error.
Affirmed.
Carpenter & Ellis, of Atlanta, for plaintiff in error.
David A. Pirkle, Jr., and Burress & Dillard, all of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
Plaintiff received permanent and painful personal injuries in a wreck of an automobile in which she was riding as a guest of the defendant. She brought suit for damages against the owner, who was driving the automobile at the time of the wreck. The defendant demurred to the petition on both general and special grounds. The trial judge sustained certain of the special grounds, with leave to the plaintiff to amend, which she did.
The defendant renewed his demurrer, and to the judgment overruling it he excepts. Held:
1. The petition is grounded on negligence, it being alleged that the conduct of the defendant that resulted in plaintiff's injuries was willful and wanton negligence. Questions of negligence and diligence, even of gross negligence and slight negligence, being questions of fact and not of law, are as a rule to be determined by a jury. Rowe v. Camp, 45 Ga. App. 794, 165 S. E. 894.
2. "One riding by invitation and gratuitously in another's automobile can not recover for injury caused by the other's negligence in driving, unless it amounted to gross negligence." Epps v. Parrish, 26 Ga. App. 399, 106 S. E. 297; Harris v. Reid, 30 Ga. App. 187, 117 S. E. 256; Peavy v. Peavy, 36 Ga. App. 202, 136 S. E. 96.
(a) Code 1933, § 105-203. For a fuller and more elaborate discussion of the meaning of the term "gross negligence, " see Harris v. Reid, supra. 30 Ga. App. 187 (2), 117 S. E. 256, 257, and cit.
3. "Gross negligence" and "willful and wanton negligence" are equivalent when the allegations of fact set up in the petition show "that entire absence of care which would raise the presumption of conscious indifference, " or that "with reckless indifference, the person acted with actual or imputed knowledge that the inevitable or probable consequence of his conduct would be to inflict injury." Harris v. Reid, supra; Peavy v. Peavy, 36 Ga. App. 202, 205, 136 S. E. 96; Lanier v. Bugg, 32 Ga. App. 294, 296, 123 S. E. 145, and cit.
4. Where the gravamen of the action alleged, as in this case, is gross negligence, the characterization in the petition of the act of negligence as willful and wanton is a mere conclusion of the pleader, and may be treated as surplusage, if it be regarded as attempting to al lege willful and wanton misconduct, and does not affect the sufficiency of a cause of action for gross negligence. See Western Union Tel. Co. v. Harris, 6 Ga. App. 260, 64 S. E. 1123; Blanchard v. Ogle-tree, 41 Ga. App. 4, 7, 8, 152 S. E. 116; Standard Oil Co. v. Parrish, 40 Ga. App. 814, 151 S. E. 541.
5. Accordingly, the petition of the plaintiff guest set out a cause of action for submission to a jury, on gross negligence. She alleged that she was riding in defendant's automobile as a guest, together with two other guests of the defendant; that they, with the defendant, were returning late at night from a dance; that the defendant was driving the automobile at an excessive rate of speed, and on being remonstrated with and cautioned about the same by one of the guests therein, he increased his speed and drove his automobile in a reckless manner at an excessive speed in violation of the state...
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...refers to defendant's conduct as mere simple negligence or as a failure to exercise ordinary care. See such cases as Frye v. Pyron, 51 Ga.App. 613(3), 181 S.E. 142; Brady v. Glosson, 87 Ga.App. 476, 480, 74 S.E.2d 253, and cases cited therein. We must look at the substance of the pleadings ......
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... ... avoided the consequences of the negligence of the defendant ... These are questions of fact for the determination of the ... jury. See Frye v. Pyron, 51 Ga.App. 613, 181 S.E ... 142; Tybee Amusement Co. v. Odum, 51 Ga.App. 1(3) ... 179 S.E. 415; Bach v. Bragg Bros. & Blackwell, Inc., ... ...
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