Morris v. Cochran
| Decision Date | 05 December 1958 |
| Docket Number | No. 2,No. 37364,37364,2 |
| Citation | 106 S.E.2d 836,98 Ga.App. 786 |
| Parties | C. W. MORRIS v. Betty S. COCHRAN et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. An owner-occupant of an automobile which is driven by a person undertaking a trip for the mutual pleasure and convenience of both parties may recover against the driver for injuries occasioned by the negligence of the latter not resulting from the direction or command of such owner.
2. (a) The negligence of the driver of an automobile, in an action by or against third parties, is imputable to the owneroccupant thereof where, as here, it appears that the owner and driver set out on a trip for their mutual pleasure and convenience, agreeing to alternate as drivers en route, and the negligence of the driver of such automobile concurred with the negligence of the driver of an approaching vehicle in inflicting the injuries upon the plaintiff.
(b) Stripped of its legal conclusions, this petition sets out a cause of action against the co-defendant Bell whose negligence is alleged to have been a contributing proximate cause of the injuries received, and is not subject to general demurrer on the ground that the petition shows on its face that the negligence imputable to the plaintiff is as great as or greater than that of the defendant.
Charles Morris brought an action for damages in the Superior Court of Walker County against Betty S. Cochran and James Addison Bell, Jr., alleging concurrent negligence resulting in injuries to himself. According to the allegations of the petition, the plaintiff was the owner of an automobile in which he and the defendant Cochran set out for Darlington, South Carolina, where each intended separately to purchase and pay for tickets which would admit them to certain sporting events; that no arrangements of any sort respecting expenses of the trip had been made; that the parties are not related; that they were enjoying each other's company; that it was understood that as a convenience to the other each would drive the plaintiff's car a part of the time; that the plaintiff had surrendered any share of the right to control the operation of the automobile over to the defendant Cochran and was a guest passenger when she began driving and assumed responsibility for the operation of the automobile, and the plaintiff did not retain or assume any power of control over the said driver.
As to the circumstances of the collision, it is alleged that the plaintiff's automobile was going south on a paved highway at a speed of about 50 miles an hour, on a paved road which was slippery with rain, proceeding downhill with a view of about 1700 feet ahead; that Bell, driving north a Nash automobile belonging to his father, the other defendant, approaching plaintiff's car, at a speed of about 55 miles per hour and coming up behind another automobile being driven at a speed of about 40 miles an hour, attempted to increase his speed to 75 miles per hour and to pass the car ahead of him before meeting the plaintiff's automobile; that the defendant Cochran saw these cars approaching and saw that the car which the Nash was passing applied its brakes and skidded a distance of 92 feet in an effort to allow Bell to pass before crashing into the plaintiff's automobile; that the plaintiff ordered the defendant Cochran to slow down since it was obvious that Bell was attempting to pass under dangerous circumstances; that Cochran failed to reduce the speed of the plaintiff's car when ordered to do so and when she had an opportunity to slow down in a gradual manner on the wet highway without skidding; that she knew or should have known that a sudden application of the brakes would result in a skid; that she continued on at unreduced speed until she reached a point about 600 feet north of the bottom of the hill and then suddenly, and with great force, applied the brakes, causing the plaintiff's automobile to skid into the concrete cap of a drainage outlet on the west side of the road, the force of the collision being sufficient to knock the car back across the center line of the highway into the east traffic lane; that Bell failed to slow down but attempted to cut back on the right side of the road between the plaintiff's car and the car which he was attempting to pass, struck the plaintiff's car, and inflicted the injuries complained of.
The trial court sustained the demurrers of each defendant, and the exception is to this judgment.
Frank M. Gleason, Rossville, for plaintiff in error.
Shaw & Shaw, George Paul Shaw, LaFayette, Strang, Fletcher & Carriger, Chattanooga, Tenn., Pittman, Kinney & Pope, Dalton, for defendant in error.
1. Insofar as the cause of action against the defendant Cochran is concerned, if she by negligence caused injuries to him as alleged in the petition she would be liable to him for the resulting loss, regardless of the relationship between themselves (that is, whether she was his agent or engaged in a joint enterprise with him or not) so long as the negligent act itself was not committed at his behest so as to make it his act rather than hers. If the act was an independent tort as to himself, he may recover irrespective of the fact that as to third parties the relationship might be such that the defendant's negligence would be imputable to the plaintiff against such third party. It is accordingly not necessary for the plaintiff to allege that he was a guest passenger in his own automobile. As stated in Central of Georgia Ry. Co. v. Macon Ry. & Light Co., 9 Ga.App. 628(3), 71 S.E. 1076, although negligence may be imputable so as to make the parties joint wrongdoers as to another who is injured, yet as between themselves one may be the sole author of the wrong and compellable in damages as to...
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