Hood v. Evans

• Court: Georgia Court of Appeals
• Writing for the Court: FRANKUM; NICHOLS, P. J., and JORDAN
• Citation: Hood v. Evans, 126 S.E.2d 898, 106 Ga.App. 360 (Ga. App. 1962)
• Decision Date: 19 June 1962
• Docket Number: No. 39417,No. 2,39417,2
• Parties: Ola HOOD v. L. W. EVANS, Jr., et al

Page 898

126 S.E.2d 898

106 Ga.App. 360

Ola HOOD v. L. W. EVANS, Jr., et al.

No. 39417.

Court of Appeals of Georgia, Division No. 2.

June 19, 1962.

Rehearing Denied July 17, 1962.

Reed, Ingram & Flournoy, R. M. Reed, Marietta, for plaintiff in error.

Jean E. Johnson, Marietta, Burt DeRieux, Atlanta, James Walker, W. P. Holley, Marietta, for defendant in error.

Syllabus Opinion by the Court

FRANKUM, Judge.

The plaintiff sued eight named defendants for damages because of the alleged wrongful death of her husband. Two defendants did not file answers, and the case was in default as to them. The plaintiff gave a 'covenant not to sue' to one of the defendants and dismissed her suit as to him. Upon the trial of the case and after the close of the plaintiff's evidence, the court granted a nonsuit as to all the defendants except the two who had not filed answers. A mistrial was granted as to these two defendants. The plaintiff brought a direct bill of exceptions assigning as error the granting of the nonsuit.

HELD:

'Regardless of whether a petition sets out a cause of action, if the plaintiff proves every fact charged, without at the same time disproving his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict, it is not proper to award a nonsuit.' Clark v. Bandy, 196 Ga. 546, 27 S.E.2d 17. The applicable rules governing the granting of a nonsuit were succinctly stated in Kelly v. Strouse, 116 Ga. 872, 43 S.E. 280. See also Field v. Martin, 49 Ga. 268. In proving the 'case as laid' the facts of the petition may be shown by direct proof or by proof of facts and circumstances from which the jury might conclude, as a reasonable inference, the facts alleged in the petition, but of which there is no direct proof. McDougal v. Johnson, 104 Ga.App. 233, 121 S.E.2d 417.

The plaintiff's petition is predicated upon the theory that all defendants except two, M. E. Latimer and Daniel R. McGee, were joint participants in an activity which proximately caused the death of her husband, in that, they jointly planned and carried our a 'drag race' on a public highway, which resulted in a wreck and in the wrongful death of the plaintiff's husband. The two named defendants, M. E. Latimer and Daniel R. McGee, were alleged to be liable by reason of ownership of two of the automobiles used in the race, which were furnished to their respective sons (also defendants) as family purpose cars. All further reference to the defendants concerning the events which transpired, out of which the alleged cause of action arose, shall not include these two defendants, as they were not present and did not participate in the events just prior to and leading to the collision. The evidence is sufficient to show that these two defendants furnished automobiles to their repective sons as family purpose automobiles.

The evidence would have authorized the jury to conclude that pursuant to a preconceived plan the defendants lined up two cars side by side on Roswell Road, a two-lane highway in Cobb County; that a third car driven by one of the defendants was placed directly behind one of these cars; that upon a signal by one of the defendants (a passenger in one of the two lead cars), the three cars sped away; that the two lead cars were driven at speeds of approximatly 100 to 110 miles per hour; that the third car fell behind, and the distance between it and the two lead cars widened; that during the race one of the racing vehicles, while on the left side of the road, collided head-on into an approaching automobile driven by the plaintiff's husband; and that in this collision the plaintiff's husband suffered injuries from which he died. The evidence was conflicting as to whether the occupants of the third car were participants in the race or mere spectators, but as this is a ruling on a nonsuit and on such ruling the evidence must be construed toward proving the allegations of the petition (Henry v. Roberts, 140 Ga. 477, 79 S.E. 115; McDougal v. Johnson, 104 Ga.App. 233, 121 S.E.2d 417, supra), the evidence was sufficient to make a jury issue that these defendants were participants together with the other defendants (except M. E. Latimer and Daniel R. McGee) in a corrupt and unlawful agreement, to carry on an automobile race on a public highway, and that in so doing, traffic laws of the State would be violated, and when the race was run, traffic laws were violated, which resulted in a wreck and proximately caused the death of the plaintiff's husband. See Landers v. French's Ice Cream Co., 98 Ga.App. 317, 106 S.E.2d 325, 74 A.L.R.2d 1050.

The above facts were alleged in the plaintiff's petition. We are of the opinion...