Luxenburg v. Aycock

• Decision Date: 29 August 1930
• Docket Number: Nos. 20116, 20155.,s. 20116, 20155.
• Citation: 154 S.E. 460,41 Ga.App. 722
• Parties: LUXENBURG et al. v. AYCOCK. AYCOCK. v. LUXENBURG et al.
• Court: Georgia Court of Appeals

41 Ga.App. 722

154 S.E. 460

LUXENBURG et al.

v.AYCOCK.

AYCOCK.

v.LUXENBURG et al.

Nos. 20116, 20155.

Court of Appeals of Georgia, Division No. 2.

Aug. 29, 1930.

Syllabus by the Court.

In this suit to recover for injuries sustained by the plaintiff while riding in an automobile as a guest of the defendants, each count of the petition was fatally defective, in that it appeared that the injuries were not proximately caused by the acts and omissions of the defendants, whether the same amounted abstractly either to gross negligence or to willful and wanton misconduct; and therefore the trial judge should have sustained the general demurrer and dismissed the petition in its entirety, instead of sustaining the demurrer in part and overruling it in part.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by R. L. Aycock, as guardian of his minor daughter, Rhea Aycock, against Albert Luxenburg and others. To review a judgment sustaining demurrer in part, plaintiff and defendant named and another bring error.

Reversed as to plaintiff, and affirmed as to defendants.

R. L. Aycock, as guardian of his minor daughter, Miss Rhea Aycock, sued W. W. Bateman and Mr. and Mrs. Albert Luxenburg for personal injuries sustained by the plaintiff's ward while she was riding in an automobile as a guest of Mr. and Mrs. Luxenburg. The term "plaintiff" will be hereinafter used to designate Miss Aycock, the person injured, rather than her guardian, unless a different meaning is indicated by the context; and, since Bateman is not a party in this court, the term "defendants" will refer only to Mr. and Mrs. Luxenburg.

The automobile in which the plaintiff was riding at the time was being driven by Mrs. Luxenburg, and was struck by a passing car driven by Bateman, after which it ran for some distance and then overturned, with the result that the plaintiff received the injuries sued for.

The petition was in six counts, of which Nos. 1, 3, and 5 were laid upon the theory of willful and wanton misconduct on the part of the defendants, and of which counts Nos. 2, 4, and 6 were predicated upon the proposition that the defendants were guilty of gross negligence, as the result of which the plaintiff was injured. A general demurrer filed by the defendants, and made applicable to each count of the petition, was sustained by the court as to counts 1, 3, and 5, and overruled as to counts 2, 4, and 6. This judgment was excepted to by the plaintiff on the one side, and by the defendants Luxenburg on the other; so that, under the two bills of exceptions, we have for determination the question of whether any count of the petition set forth a cause of action as against the Luxenburgs. The allegations of fact as to the Luxenburgs are the same in each count of the petition; and the only variation is in conclusions of the pleader, in that in three of the counts the facts were alleged to constitute willful and wanton misconduct, while in the other three counts they are characterized as gross negligence.

The transaction in question occurred on July 4 1929, on the Atlanta-Newnan highway, while the plaintiff with Mr. and Mrs. Luxenburg and their children were en route to Lake Raymond, a resort in the vicinity of Newnan. The manner in which the accident happened is stated in the petition as follows:

"That defendant Bateman did veer over to the left side of the highway in order to pass the car of said Luxenburgs, and did thereupon cut in toward the right side of said road in front of said Luxenburg car too quickly, causing the right rear end of his car to hit the left front end of said Luxenburg car. That the highway at the point of said blow is a concrete highway eighteen feet wide. That defendant Mrs. Luxenburg was driving upon the right side of said road at the time said blow was struck her car by defendant Bateman. That adjoining said concrete highway at the point of said blow, along the right side of said highway facing Newnan, is a dirt surface continuation of said concrete road of about throe or four feet in width. That beyond said dirt surface road continuation is a dirt embankment decline of about five feet in height, ending in plowed cornfield below. That the said blow struck said Lux-enburg's car by said Bateman's car did cause the front end of said Luxenburg's car to steer out across said dirt surface continuation of the concrete road. That defendant Mrs. Luxenburg did turn her car straight again at the edge of said embankment, the left wheels of her car staying on the concrete and the right wheels straightening just at that point on said dirt surface continuation where the embankment begins its decline. That defendant Mrs. Luxenburg, upon reaching a point about 50 feet along said dirt surface beyond the point whereupon she first drove on said dirt surface road continuation, did suddenly turn her car to the left, causing it to turn back across said concrete road. That defendant Mrs. Luxenburg. upon reaching the middle of said concrete road, did fail to right-en said car in the direction toward Newnan, but continued across said road down the embankment on the left-hand side of said road. That said embankment on the said left side of said road is about 15 feet in height, and of a sharp, precipitous decline. That the car of defendants Luxenburg did turn over on its side at the bottom of said embankment, injuring your petitioner's daughter as set out hereinafter."

The facts alleged for the purpose of fixing the responsibility of the parties were as follows: The defendant Albert Luxenburg was driving the automobile at the time of their departure with the plaintiff from Atlanta, but Mrs. Luxenburg "changed to the driver's seat" at a point near Fairburn, Ga., and thereafter drove the car until the time of the accident. Mrs. Luxenburg was an inexperienced and an incompetent driver of automobiles, and had never before driven this particular automobile. Both she and her husband knew that she was an inexperienced and incompetent driver, and both of them further knew that the highway from Atlanta to Newnan on such a holiday as the Fourth of July would be crowded with traffic of all sorts, and that on this date there was at least twice as much traffic as on nonholidays. Defendants also knew that "it was dangerous for an inexperienced and incompetent driver to manipulate an automobile on said highway on said date." Mrs. Luxenburg "did, after taking command of said car, have several very narrow escapes from accidents due to her inexperience and incompetency, which escapes should have caused her to redeliver control of said car to her husband; for instance, she did first go so close to the left side of the road in passing a car going the same direction that she was warned by her husband to cut in more closely to the next car, and her son Richard Luxenburg. a child of about ten years, did protest to his mother in an exclamation of terror; whereupon said child was told to shut up by its mother; and at the next passing of a car, said defendant Mrs. Luxenburg did cut in too closely to the car she was passing, which again brought forth complaint from her husband and exclamations from her child. That defendants Mr. and Mrs. Luxenburg well knew, or should have known, that defendant Mrs. Luxenburg's continuing to drive said ear in view of the premises made more probable an accident which would cause an injury to the occupants of said car. That your petitioner's daughter did not make any protest to defendants Mr. or Mrs. Luxenburg, because said defendants' own child had been told to shut up at the time he had complained of his mother's manner of driving said car. That your petitioner's daughter is a child of 14 years of age, whose care had been entrusted to said defendants, and whose...