Lee v. Lott

• Decision Date: 26 October 1934
• Docket Number: No. 24176.,24176.
• Citation: 50 Ga.App. 39,177 S.E. 92
• Parties: LEE. v. LOTT.
• Court: Georgia Court of Appeals

50 Ga.App. 39

177 S.E. 92

LEE.

v.LOTT.

No. 24176.

Court of Appeals of Georgia,

Division No. 1.

Oct. 26, 1934.

Syllabus by the Court.

1. Where a statute of a foreign state is pleaded as being the basis of a cause of action arising in that state, in a suit instituted in this state, and a construction of such statute becomes necessary, the decisions of the courts of last resort of such foreign state in construing the statute will be adopted; and, where it appears that there are no decisions of courts in that state construing the statute, but that the statute was verbally adopted from the statute of another state, the decisions of the state from which it was adopted will be considered in construing the statute, especially those decisions construing it which had been made prior to the adoption of the statute in the latter state.

(a) It is therefore proper that the act pleaded as a basis of recovery in this case be construed to mean that a person riding as guest in an automobile without paying therefor cannot recover for injuries sustained except in two cases; that is, (1) where the act causing the accident was intentional, and (2) where the accident was caused by the heedless and reckless disregard of the rights of others by the owner or operator.

(b) An act or conduct which is heedless and reckless disregard of others is improper or wrongful conduct, and constitutes wanton misconduct, evincing a reckless indifference to consequences to the life or limb or health or reputation or property rights of another.

(c) Wanton misconduct, as the term is thus used, is more than negligence, more than gross negligence. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action.

2. While the facts alleged in the petition in the present case might be sufficient to carry the case to a jury if the measure of required conduct of the defendant was slight care, it is insufficient to show that the injury was caused by the heedless and reckless disregard of the rights of others.

3. The trial judge therefore erred in overruling the general demurrer raising this point.

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

Suit by Robert E. Lott against J. M. Lee. To review a judgment overruling demurrers to the petition, defendant brings error.

Reversed.

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

H. A. Woodward and D. G. Fogarty, both of Augusta, for defendant in error.

GUERRY, Judge.

Robert E. Lott brought his action against J. M. Lee to recover for personal injuries sustained while riding as a guest in Lee's car. The accident occurred in the state of South Carolina, and the "guest statute" of that state (Code S.' C. 1932, § 5908) is pleaded as the basis of recovery. The petition alleges that plaintiff was invited by the defendant to accompany him as a guest in his automobile to Brunswick, Ga.; that at a point on the road in South Carolina near Yamassee, S. C., he ran his automobile off the paved road while running at a speed of between fifty and sixty miles an hour, such speed being in violation of the South Carolina statute which was set out in the petition; that the defendant regained the roadway without injury and was cautioned by the guests to drive carefully, which he promised to do; that a short time thereafter he again drove the automobile off the pavement, but managed to regain the roadway without injury; that plaintiff and other passengers offered to drive for the defendant, but he refused to allow them to drive, and stated that he would allow his son-in-law, who was also a passenger, to drive when they reached Yamassee; that a short time thereafter, at a point five miles from Yamassee, and while going at a speed of fifty to sixty miles per hour, and while looking around as he conversed with the occupants of said automobile, he again ran off the roadway onto the soft shoulder of the road, and, without slackening his speed, attempted to pull back onto the paved roadway, but, the pavement being at that point six inches higher than the shoulder, he had to tug at the steering wheel with unusual force, and, when the automobile mounted the pavement, it ran across the pavement and headed for the ditch on the left-hand side of the road, and the defendant abruptly jerked to the right and then to the left, when the automobile turned over completely twice, resulting, in described injuries to the plaintiff, The petition further alleges that six weeks prior to this time the defendant ran his automobile over a "silent policeman" in the city of Augusta, and so dis arranged his steering apparatus that the same would continuously swerve to the right while it was being driven; that two weeks before the injury complained of, the defendant carried the car to a garage to have the defective steering apparatus repaired, and that after the alleged repairs it still swerved to the right when driven and the steering apparatus was still defective; "that said accident or injury was caused solely by the gross negligence and heedlessness of the defendant, and his reckless disregard of the rights of others, and was without any contributory negligence of the plaintiff;" that the defendant's negligence consisted in (a) driving in excess of the speed allowed by the statute of the state of South Carolina, therein set out, to wit 45 miles per hour; (b) in failing to equip his automobile with a suitable steering apparatus and repair the same seasonably and properly and keep it in proper working condition; (c) that defendant was "grossly, wilfully, and heedlessly negligent, having an utter disregard for the rights of others when he invited plaintiff to travel with him as his guest in his said automobile when defendant knew that the steering apparatus of his said automobile was defective and unsafe for travel and in violation of the law of South Carolina, * * * which section [Code 1932, § 5908] reads as follows: 'Owners of motor-vehicles not responsible for injuries to guests. 1. Guests without payment. 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 said 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 the owner or operator or caused by his heedlessness or his reckless disregard of the rights of others'; (d) in operating said motor vehicle in a wilful, negligent, heedless, and reckless rate of speed when defendant knew that the steering wheel or apparatus of his said vehicle was defective and not in repair, and in violation of the laws of South Carolina as follows: 'It shall be unlawful for any person to ride or drive any horse or mule or bicycle, automobile, and locomobile upon any street or alley in any city or town or on any public highway of this State in a wilfully careless or reckless manner.' "

The general and special demurrer interposed to this petition was overruled, and defendant excepted. The general demurrer was that "no facts are alleged showing that said accident was intentional on the part of thedefendant or was caused by his heedlessness or his reckless disregard of the rights of others, " and because the petition affirmatively showed that the plaintiff assumed the risk of the defective condition of the car. There were certain special grounds of demurrer, as to running over a "silent policeman" and having the car repaired; these grounds being that such allegations were irrelevant, immaterial, and harmful, and inserted for prejudicial purposes. There was a special motion to strike the allegations of negligence in reference to speed and a failure to have a proper steering apparatus because they were insufficient to show that the alleged injury was caused by an intentional act or by the heedlessness and recklessness of the defendant or in reckless disregard of his rights."

It will be seen from the statement above made that the allegations which are claimed to be heedless and in reckless disregard of the plaintiff's rights (as there is no allegation that the accident was intentional) are as to (a) the unlawful speed of the car; (b) the failure to equip the car with suitable steering apparatus and the failure to inspect and repair the same; (c) the operation of said car while the plaintiff was a guest therein when the defendant knew of the defective condition of the steering apparatus; and (d) the looking back and talking with other occupants of the car while driving it.

There is no statute law in Georgia, respecting the right of a guest in an automobile to recover damages for injuries sustained therein from the owner or operator; however, our courts have laid down the principle that "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. 390, 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; Blanchard v. Ogletree, 41 Ga. App.

4, 152 S. E. 116; Meddin v. Karsman, 41 Ga. App. 282, 152 S. E. 601; Luxenburg v. Ay-cock, 41 Ga. App. 722, 154 S. E. 460; Rosen-hoff v. Schaul, 42 Ga. App. 76, 157 S. E. 215; Wachtel v. Bloch, 43 Ga. App. 756, 160 S. E. 97; West v. Rosenberg, 44 Ga. App. 211, 160

5. E. 808; Smith v. Hodges, 44 Ga. App. 318, 161 S. E. 284; Townsend v. Minge, 44 Ga. App. 453, 161 S. E. 661; Yearwood v. Year wood, 45 Ga. App. 203, 164 S. E. 105. See, also, Slaton v. Hall, 168 Ga. 711, 148 S. E. 741, 73 A. L. R. 891. In the present case the statute of South Carolina, which was passed in 1930 (36 St. at Large, p. 1164 [Code 1932, § 5908]) is pleaded, as above set out, and it becomes necessary for this court to construe and apply the South Carolina statute to the facts as set forth in the petition, in order to determine the merits of the...