Hockmuth v. Perkins

• Decision Date: 18 March 1937
• Docket Number: 25925.
• Parties: HOCKMUTH v. PERKINS.
• Court: Georgia Court of Appeals

191 S.E. 156

55 Ga.App. 649

HOCKMUTH v. PERKINS.

No. 25925.

Court of Appeals of Georgia, First Division

March 18, 1937

Rehearing Granted March 26, 1937.

Adhered To April 3, 1937.

On Rehearing.

Syllabus by the Court.

The present action, which the plaintiff seeks to ground upon the South Carolina "guest statute" (Code S.C.1932, § 5908), does not lie, for the reason that the plaintiff's remedy is solely under the Georgia Workmen's Compensation Act (Code Ga.1933, § 114-101 et seq.); and the general demurrer to the petition was erroneously overruled.

BROYLES C.J., dissenting.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Action by R. R. Perkins, as next friend of James R. Perkins, against Henry Hockmuth. Judgment for plaintiff on demurrer, and defendant brings error.

Reversed.

Bussey & Fulcher, of Augusta, for plaintiff in error.

Isaac S. Peebles, Jr., of Augusta, for defendant in error.

MacINTYRE Judge.

"R R. Perkins, as next friend of James R. Perkins," brought an action against "Henry Hockmuth, doing business under the name and style of Vienna Bakery," to recover $15,000 damages. The questions for determination are whether the court erred (1) in overruling the demurrer to the original petition, (2) in allowing the original petition to be amended, and (3) in overruling the demurrer to the petition as amended.

The original petition substantially avers:

1. The defendant operates a bakery in Augusta, Ga., and operates trucks "in the Augusta trade territory for the delivery of his products, including a truck delivery between Graniteville, S. C., and Vaucluse, S. C., * * * in the State of South Carolina."

2. James R. Perkins "is a minor fourteen years of age on December 11, 1934."

3. "That * * * at the times hereinafter mentioned, Woodrow Price was in the employment of the defendant * * * operating for the defendant a truck for delivery of bakery products * * * on the highway from Warrenville, Graniteville and Vaucluse S. C." On May 20, 1935, Price agreed to pay the said minor $3 per week if he would go along on said truck route to assist him in making deliveries on said route, and when said minor reported at the defendant's place of business on said date, the defendant approached him "as though he were a customer, asking him what he wanted." The minor replied, in substance: "'I am the boy Mr. Woodrow Price asked to come here this morning to take a job with him on the truck that he is running over in South Carolina for you.' The defendant replied: 'All right.' The * * * minor then assisted * * * Hockmuth and * * * Price in loading the truck that was to be, and was, operated by the said * * * Price for the defendant in the state of South Carolina, and went off on said truck with the full knowledge and consent of the defendant."

4. Said minor "continued daily to go upon said truck of the defendant until and including May 24, 1935." On said date, "said minor, in the presence of and with the full knowledge of * * * Hockmuth, assisted said * * * Price and the defendant in loading said truck for its delivery on Federal Highway No. 1 and in Warrenville, Graniteville and Vaucluse, S. C."

5. "That the said * * * Price, driving defendant's truck and on defendant's business, accompanied by said minor and helper, with the full knowledge of the defendant, had completed his delivery at Vaucluse, S. C., about 4:30 p. m. on May 24, 1935, and had started back toward Augusta by way of Graniteville, S. C., accompanied by said minor in said truck." As Price approached a bridge about 2 1/2 miles from Vaucluse, he increased the speed of the truck from the reasonable speed at which he had been traveling to 60 miles per hour. "The road * * * is a winding road, with quite a number of curves, especially for a mile on both sides of said bridge. The car was swerving from one side of the road to the other as it approached and went over said bridge, and said minor, seeking the danger consequent upon such reckless speed, remonstrated with * * * Price about the speed of the truck as the same approached the said bridge; and when * * * Price would not slow down * * *, the said minor requested * * * Price to stop and let him * * * get out of the said truck. This * * * Price refused to do, and proceeded across the bridge, veering from one side to the other, at a rate of sixty miles per hour." About a quarter of a mile "towards Graniteville from said bridge * * * is a dangerous curve on an embankment. The said minor, seeing that they were about to meet a T model Ford on the said curve, and, knowing that the * * * truck could not go around the said curve at the dangerous rate of speed said truck was going, warned said Price that he could not make said curve at the rate of speed he was going and begged him to slow up. Instead of slowing up, * * * Price, in order to annoy and further frighten * * * said minor, increased the speed of said truck up to sixty-five miles per hour as they approached said curve." And when said truck reached said curve, it "was unable to negotiate same and plunged down an embankment into a pine tree * * *, practically demolishing the truck," inflicting designated serious injuries upon the minor.

6. (Deals with the results of the alleged injuries).

7. Said minor "was wholly without fault, and the said injuries were caused solely by the willful and wanton negligence of the defendant acting by and through the said driver of the defendant's truck, * * * in that said servant of defendant drove said truck at a high and dangerous rate of speed in violation of the laws of the State of South Carolina and in excess of sixty miles per hour; and that in approaching said curve, defendant's driver did not slacken the speed of the said truck to such a rate that he could safely go around said curve, but increased the speed of the same; and in that defendant's driver of said truck did not drive the same at such a speed as to enable him to control said truck as aforesaid to allow said minor to alight therefrom."

The defendant demurred to the original petition:

1. "Because said petition does not set forth any cause of action against this defendant."

2. No cause of action is set forth "because said accident occurred in the state of South Carolina and plaintiff sustained his alleged injuries through the negligence of a fellow servant, one Woodrow Price, for which this defendant is not liable."

3. No cause of action is set forth "because said accident occurred in the state of South Carolina and the injuries alleged to have been sustained by the plaintiff were injuries which arose out of risks of his employment which were assumed by said plaintiff."

4. Because the petition does not allege "the number of persons in the employ of the defendant, which fact is necessary for this defendant to determine its liability, if any, to the plaintiff."

The following amendment to the petition was allowed "subject to demurrer or objections":

1. "That attached hereto as Exhibit A is a copy of the South Carolina statute governing the transaction in question."

2. Plaintiff "denies that said minor was injured by any ordinary risk of his employment."

3. That "said injuries to said minor were the result of the wilful and wanton acts of the defendant, acting by and through the said * * * Price, his alter ego and driver, in that the said * * * Price was warned by the said minor that he * * * could not make the dangerous curve referred to in paragraph 5 of said petition, owing to the high and dangerous rate of speed he was driving said truck, and although implored by said minor to slow down, he, said driver, in heedless and reckless disregard of the safety of said minor wilfully and wantonly increased the speed of said truck to such an extent that it was impossible for him * * * to make said curve with said truck, with the result that it was upset as alleged, and said minor, helper of Price, was injured as stated, and in the emergency thus created by defendant's agent, said minor was unable to protect himself from injury."

4. "That said minor realized that he was in danger and not only protested * * * but requested said Price to stop the said truck and let him get out. That * * * Price refused to accede to said request, and to prevent said minor from getting out increased the speed of the truck as stated, retaining said minor in said truck against his will. That said minor, under said circumstances, and in the emergency thus created by the said defendant, ceased to be an employee and became an unwilling guest or prisoner of defendant in said truck, was so kept and so continued therein against his will until the receipt of the injuries hereinbefore referred to. All of which was caused by the wilful, wanton acts of said defendant by the said agent and alter ego in charge of said truck and in heedless and reckless disregard of the life and limb of said minor, all in violation of said law of South Carolina."

5. "* * * that said injuries were not the result of accident, and do not, therefore, come within the workmen's compensation law [Code 1933, § 114-101 et seq.], but were the result of said wilful, wanton and heedless conduct of defendant's said agent, * * * Woodrow Price."

Attached to the foregoing amendment is a copy of the guest statute of South Carolina, as set out in section 5908 of the Code of 1932 of that state. This statute reads as follows: "No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such automobile, its owner or operator for injury, death or loss in case of accident unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness...