Jordan v. Lee

• Decision Date: 28 February 1935
• Docket Number: 10160.
• Citation: 179 S.E. 102,180 Ga. 424
• Parties: JORDAN v. LEE. [a1]
• Court: Georgia Supreme Court

179 S.E. 102

180 Ga. 424

JORDAN v. LEE. ^[a1]

No. 10160.

Supreme Court of Georgia

February 28, 1935

Syllabus by Editorial Staff.

Overruling of general demurrer to petition for negligence is a judgment conclusive on points of law necessarily involved, but does not necessarily entitle plaintiff to recovery if he proves his case as laid, since general demurrer should be overruled when jury would be authorized to infer negligence from facts alleged, even though jury would not be bound to do so.

What acts constitute negligence is question for jury, except where particular act is declared to be negligence by statute or valid ordinance.

Question certified, as to whether judgment overruling general demurrer to automobile guest's petition against host for negligence precluded verdict for host, in view of fact that only evidence introduced was that of guest which substantially proved guest's case as laid, could not be answered, since question required answer as to whether evidence was sufficient to support verdict, and Supreme Court can answer only questions of law on certification from Court of Appeals.

Certified Questions from Court of Appeals.

Suit between Minnie Jordan and Mattie J. Lee. To review the judgment, the first-named party brings error to the Court of Appeals, which certifies questions.

Questions answered.

Horace & Frank Holden and Lewis C. Russell, all of Atlanta, for plaintiff in error.

McDaniel Neely & Marshall and E. A. Neely, Jr., all of Atlanta, for defendant in error.

Syllabus OPINION.

ATKINSON Justice.

1. "The overruling of a demurrer is a judgment binding on the parties, concluding the points of law necessarily involved. That does not mean that the plaintiff is absolutely entitled to recover if he proves his case as laid; for a general demurrer should be overruled, in an action based on negligence, when the jury from the facts alleged would be authorized to infer negligence, though they would not be bound to do so." McDuffie v. Ocean Steamship Co., 5 Ga.App. 125, 129, 62 S.E. 1008, 1010.

2. "Except where a particular act is declared to be negligence, either by statute or by a valid municipal ordinance, the question as to what acts do or do not constitute negligence is for determination by the jury." Atlanta & West Point Railroad Co. v. Hudson, 123 Ga 108, 51 S.E. 29; Central of Georgia Railway Co. v. Brown, 138 Ga. 107, 117, 74 S.E. 839.

3. The first question propounded contains a premise that the plaintiff "substantially proved her case as laid." Assuming that the question includes an inference that in the trial court a verdict was rendered for the defendant, the question, properly construed, requests this court to answer whether or not the evidence was sufficient to support the verdict. In a case based upon negligence, a number of legal principles not mentioned in the question may be involved, such as contributory negligence, credibility of witnesses, the exercise of due care by the injured party, which, when applied to facts, if any, in favor of the defendant, may justify the jury in finding for the defendant notwithstanding that the plaintiff "substantially proved the case as laid." Whether or not in such case the plaintiff would be entitled to recover would require an investigation of the evidence. Proof of the facts alleged does not necessarily prove negligence. The jury must determine the existence of negligence, if any, from the facts. As this court can only answer questions of law certified by the Court of Appeals, it cannot answer the first question here propounded.

4. The rulings here made do not conflict with any of the authorities cited by the Court of Appeals or by the briefs of counsel.

The Court of Appeals propounded the following questions: "1. Where...