Hamby v. Hamby, 37692

• Decision Date: 24 June 1959
• Docket Number: No. 1,No. 37692,37692,1
• Citation: 110 S.E.2d 133,99 Ga.App. 808
• Parties: T. G. HAMBY v. Lawrence HAMBY
• Court: Georgia Court of Appeals

Page 133

110 S.E.2d 133

99 Ga.App. 808

T. G. HAMBY v. Lawrence HAMBY.

No. 37692.

Court of Appeals of Georgia, Division No. 1.

June 24, 1959.

Rehearing Denied July 9, 1959.

Syllabus by the Court

1. It is not necessary to move for a directed verdict in order to raise the question by motion for new trial that the verdict is 'without evidence to support it.'

2. A position assumed by a plaintiff based upon facts contrary to those appearing in the record can not be sustained.

3. Liability of a host driver for injuries sustained by a guest passenger in his automobile as a result of a collision between the driver's automobile and other vehicles which occurs in the State of Ohio depends upon whether the proximate cause of the collision was the result of wanton misconduct on the part of the driver within the meaning of the statutes of Ohio as construed by the courts of that State; and, where upon the trial of such a case as indicated, the evidence, properly construed, does not reveal any such misconduct on the part of the defendant host, a verdict for the plaintiff guest is without evidence to support it and a new trial must be ordered.

Lawrence Hamby sued Thomas G. Hamby for damages in the Superior Court of Murray County. The petition as finally amended alleged substantially the following facts. The defendant has damaged the plaintiff in a named sum for which recovery was prayed. On May 5, 1957, the plaintiff was riding as a guest passenger in the defendant's automobile. The defendant was driving in a northerly direction in the City of Cleveland, Ohio, along West 65th Street which is a public street running in a generally northern and southern direction and intersects at right angles with Detroit Avenue which is also a public street. At the junction of the aforementioned streets is a business district of Cleveland and the speed on such streets is governed by Section 9.1306 of the Traffic Code of the City of Cleveland, reading in part: 'Twenty-five (25) miles per hour in all other portions of the city, except on state routes and on through highways, outside business districts.' The traffic along the aforenamed streets is controlled at the intersection by what is generally known as an automatic signal light. The defendant was driving his automobile along 65th Street, approaching the intersection, and at that time the traffic light was red indicating that traffic moving in a northerly direction should stop at the intersection. Immediately in front of the defendant's automobile was another automobile being operated by an unknown person, who in obedience to the traffic light stopped his automobile and the defendant drove his automobile into the rear of that automobile, causing the defendant's automobile to veer and skid to his left across the center line of the street and immediately in front of and into an approaching truck which was traveling in a southerly direction on 65th Street. The defendant at the time was operating his automobile at the unlawful speed of 35 to 40 miles per hour, and too closely behind the automobile that preceded him, in violation of the law. The defendant at the time intended turning his automobile to the left and had turned it slightly to the left, but the defendant was not keeping a lookout ahead in the direction in which he was operating his automobile and drove it into the back of a standing automobile. West 65th Street is a much used and traveled street in Cleveland, and driving an automobile on that street under the circumstances alleged constituted 'wanton negligence and misconduct' on the defendant's part. In operating his automobile at the rate of speed, time, and place, and not more than ten feet behind another automobile amounted to wanton negligence and misconduct on the defendant's part, and a violation of the aforementioned city ordinance. Immediately following the collision with the truck, the defendant was charged with the offense of reckless driving, and to that charge the defendant entered his plea in the Cleveland Municipal Court, being number 605879. Reckless driving is defined in Code Section 9.1304 of the Traffic Code of the City of Cleveland as follows: 'No person shall operate a vehicle, trackless trolley or street car in and upon the streets without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys and street cars and so as to endanger the life, limb or property of any persons while in the lawful use of the streets.' The plaintiff's injuries were caused solely by the defendant's wanton negligence and misconduct which constituted gross negligence. The plaintiff sustained certain injuries, incurred expenses, and lost time of a stated value on account of the collision. The petitioner's loss of earning capacity and his injuries are permanent. The petition further averred that the collision occurred in the State of Ohio and the laws of that State must be applied in determining the defendant's liability. Code § 4515.02 of the Code of Ohio, which is the applicable statute, reads: 'The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.'

The defendant, Thomas G. Hamby, filed a general demurrer to the petition but the record discloses that no order was taken on the demurrer and the case went to trial on its merits.

In his answer the defendant admitted that he was a resident of Murray County, Georgia; that on May 5, 1957, the plaintiff was riding in his automobile as an invited guest; that he, the defendant, at the time and place alleged in the petition, was driving his automobile along the street and in the direction alleged in the petition; that traffic along the named street was controlled by an automatic signal light; that at the time and place in question another automobile was being operated immediately in front of the defendant's automobile by an unknown person; that Section 4515.02 of the Revised Code of the State of Ohio pertaining to guest passengers in motor vehicles was in full force and effect at the time and place in question; and that the law of Ohio governs the plaintiff's rights as a guest passenger. The defendant denied all other allegations of the petition and specifically alleged that he was not guilty of wilful and wanton misconduct and that he was not guilty of any acts authorizing a recovery against him under the laws of the State of Ohio.

There was evidence of the injuries sustained by the plaintiff, his pain and suffering, and, also of his earning capacity. The only evidence of the defendant's liability was given by the plaintiff himself.

If we delete as much extraneous matter as possible, the plaintiff's testimony on the question of the defendant's liability may be summarized in his own words as follows: '* * * The defendant, Thomas G. Hamby, is my son. On or about May 5, 1957, I was in Cleveland, Ohio * * * I was living in Cleveland at the time I was hurt * * * On 65th Street, I forget the number, it was the Detroit Hotel. * * * I was hurt * * * Ten o'clock Sunday morning. It was a fair day. Yes, there was much traffic on the streets at that time. As to how big a city Cleveland is, I never did check it, there are lots of people though * * * 65th Street runs in the general direction of east and west. As to what direction Detroit Avenue runs; well, I may be turned around there, it may run east and west * * * There is a traffic light at this intersection. It has the ordinarily red, yellow and green lights that we see here. It was in operation at that time. * * * It was a busy corner. As to what type of buildings are located on 65th Street; well, that hotel I was staying in, I believe it is a four story building on the corner, it corners Detroit Avenue and 65th Street also. That is both a business section and a residental section. * * * At that time I was riding in an automobile being driven by my son. * * * We were going to my room at the hotel from his house. In the direction in which we were going to my room we would have had to turn to the left at the intersection. We were on 65th Street at the time * * * I had spent the night with my son and we had a friend in Bay City Hospital that we wanted to go see, he was from this town here, he had been in an accident and I told him if he could carry me over to my room I would change clothes and we would go out and see the man, and we was driving along, when I am riding with another man I don't pay too much attention to everything going on, and after we turned down 65th why we made a stop sign and in that next block would be the hotel where I was staying, and about the first thing I knew we was hitting everything around, and the next thing I remember I woke up in the hospital that evening about five or six o'clock. As to approximately how many blocks we had driven on 65th Street; well, I would say four or five blocks. As to whether or not I can tell the jury approximately how fast the speed was at the time the wreck happened; well, not exactly, for I wasn't looking at the speedometer, but you don't drive too slow there anyway, I would say we was driving between thirty and forty, may be forty-five miles per hour. As to whether or not I saw a car in front of us; well, yes, when I looked up we was hitting this car on the right, and the next thing we was hitting this gas wagon. The car that we hit on the right was going in the same direction that we were going. As to what part of the car we hit; well, the best I remember it was the left rear fender, I couldn't say for sure. As to the direction we went in, well from...