Mote v. Mote
| Decision Date | 08 April 1975 |
| Docket Number | No. 1,No. 50155,50155,1 |
| Citation | 215 S.E.2d 487,134 Ga.App. 668 |
| Parties | Annette MOTE v. Betty Jo MOTE et al |
| Court | Georgia Court of Appeals |
Powell, Goldstein, Frazer & Murphy, Eugene G. Partain, Daniel M. Coursey, Jr., Atlanta, for appellant.
James W. Paris, Winder, Cullen M. Ward, Jackson C. Floyd, Jr., Atlanta, Paul S. Weiner, Jonesboro, for appellees.
Syllabus Opinion by the Court
Bobby Ray Poole, Charlie Mote, Jr., and Charlie's brother Leonard Mote all were killed during the early morning hours of Sunday, April 4, 1971, when a 1968 Dodge 'Super Bee' in which they were riding at approximately 90 miles per hour went off the left side of U.S. Highway 29 in a curve south of Auburn, struck a pine tree, went over an embankment and turned end-over-end an unknown number of times before landing upside down in the Apalachee River. There were no eyewitnesses to this occurrence, and the automobile was not discovered until approximately fifteen hours later at which time it was pulled from the river on its top, turned over, and dragged to the edge of the highway, whereupon the bodies of the three men were removed.
As a result of this occurrence Leonard's widow, Mrs. Betty Jo Mote, brought suit for Leonard's wrongful death against Mrs. Annette Mote, Charlie's administratrix, contending that Leonard was a guest passenger in the automobile owned and being operated by Charlie. The principal questions in the case were whether Charlie or Poole owned the automobile, and whether Charlie or Poole was operating it at the time. The jury returned a verdict in plaintiff's favor against Charlie's administratrix, and she now appeals. Held:
1. Defendant's primary contention is that the evidence was insufficient for jury determination as to the identity of the driver of the death vehicle, and that accordingly her motions for directed verdict, for judgment notwithstanding the verdict, and for new trial should have been granted. The principle relied upon is that 'where circumstantial evidence is relied upon to establish a conclusion and the uncontradicted circumstantial evidence gives equal support to inconsistent conclusions or theories, the judgment as a matter of law must go against the party having the burden of proof.' Liberty Nat. Life Ins. Co. v. Liner, 113 Ga.App. 710, 712, 149 S.E.2d 523, 525 and authorities cited.
Thus it is argued that even though there was evidence which, if believed by the jury, showed that Charlie's body was found in the front seat on the driver's side in the general vicinity of the steering wheel and the other two bodies were in the back, this evidence was insufficient upon with to base a conclusion that Charlie was driving at the time of the occurrence since Poole had taken custody and possession of the automobile some two to three weeks prior to this event and was driving it earlier in the evening, pointing to the more probable conclusion that Poole was still driving at the time of the fatalities and, because no one was wearing seat belts, the bodies had been moved about in the automobile by the force of the collision or by phenomena occurring while the car was submerged upside down in the flowing river with the windows down or broken out.
We hold that the issue as to the identity of the driver was one for jury determination. 'If the evidence for the plaintiff, circumstantial though it be, tends reasonably to establish the theory of the case made by the petition, and preponderates to that theory rather than to any other reasonable hypothesis, it is error to grant a nonsuit.' Callaway v. Hall, 58 Ga.App. 795, 199 S.E. 899. 'Where all the occupants of a motor vehicle are killed as the result of a collision, and there are no eyewitnesses as to which occupant was driving, the jury may determine from evidence as to the physical surroundings, the location of the bodies, etc., which occupant was the driver.' Pettigrew v. Branch, 101 Ga.App. 534(1), 114 S.E.2d 391. Accord: Kimberly v. Reed, 79 Ga.App. 137(3, 5), 53 S.E.2d 208; Martin v. State, 102 Ga.App. 216, 219(4), 115 S.E.2d 859. See also Jones v. Britt, 75 Ga.App. 142, 42 S.E.2d 648. The instant case cannot be satisfactorily distinguished from Pettigrew, and we see no reason to depart from the ruling made there and in the other cases cited supra.
Enumeration of error 1, and the general grounds of the motion for new trial as complained of in Enumeration no. 17, are without merit.
2. Remaining enumerations of error complain of the court's charge as given and failure to charge as timely requested by defendant. We find reversible error in several of these enumerations; and because certain of the charges and failure to charge are so interrelated to each other and to the circumstances of the parties, particularly with reference to the ownership of the Dodge 'Super Bee,' we find it necessary to first state those circumstances and then to attempt to correlate the attacks on the charge with each other and with the circumstances.
As indicated above, one possible theory of recovery was that Charlie Mote was driving the 'Super Bee' at the time of the occurrence and was directly responsible for his negligent operation of it, regardless of who may have owned it. Another theory was that even if Poole was driving at the time, Charlie was responsible for Poole's negligence on the basis that Charlie owned the automobile, was present at the time, and was presumptively in control of it under the 'owner present' doctrine. Although as held in division 1 of the jury would have been authorized to find for the plaintiff on the basis that Charlie was actually driving, it is impossible to determine whether the jury reached a verdict on that basis or on the 'owner present' theory. Consequently error in the charge with respect to the latter theory could not be held harmless, and we now consider those questions.
The record reveals that Charlie Mote had owned the 'Super Bee' and Poole had owned a Chrysler. Approximately two to three weeks prior to the collision, Poole and Charlie agreed to trade cars, the two men shaking hands and saying that it was a deal, followed by Poole taking possession of the 'Super Bee' and Charlie taking possession of the Chrysler. The tag receipts and certificates of title were never transferred, however, both men being killed before that was accomplished. Between the time of the trade and the time of the collision, Poole kept the 'Super Bee' at his apartment, and Charlie and his wife retained continuous possession of the Chrysler. During this period, only Poole and his son, with Poole always present, drove the 'Super Bee,' and only Charlie and his wife drove the Chrysler. Charlie purchased two new tires for the Chrysler, and Poole attempted to borrow money from his girl friend to purchase a tag for the 'Super Bee.'
At approximately 5:00 P.M. on Saturday, April 3, Poole and the Mote brothers arrived at Leonard's home and remained there for approximately 45 minutes, during which time the three men drank some bourbon whiskey. Poole and Charlie returned to their respective residences, and at approximately 6:30 P.M. Leonard called Charlie requesting that Charlie pick him up to discuss business. Charlie then called Poole and requested that Poole go with him to Leonard's house, and Poole left his apartment at approximately 9:00 P.M. driving the 'Super Bee' to pick up Charlie. Poole remained at Charlie's home for about five or ten minutes, during which time they each had a drink of whiskey. Charlie and Poole then left in the 'Super Bee' to go to Leonard's home in Winder. Neither Charlie's wife nor daughter saw who drove the automobile away, but Poole left the house with the keys to the 'Super Bee' in his hand. The two arrived at Leonard's home at around 11:00 P.M., the three men left in the 'Super Bee' some time around midnight to go back to Charlie's house in Tucker, and the fatal collision then occurred on this trip at approximately 12:30-1:00 A.M. When the car was discovered in the river at approximately 4:00 P.M. in the afternoon, a 1/2 gallon bottle of liquor, from which there was 1/2 to 3/4 of a pint missing, was found floating out of the back seat. Blood samples were taken from the bodies of Poole and Charlie, and the test results showed that Charlie had .11% blood acohol content some 15 hours after the collision, and Poole had a blood alcohol content of .23%.
a). In Enumerations of error 2 and 3, defendant complains of the court's failure to give her requests to charge numbers 2 and 4, setting forth principles by which the jury were to determine ownership of the death car. However, the principles contended for are also set forth in defendant's requests numbers 3 and 5, which the trial court did charge, and since the matter was thus adequately covered no reversible error appears. Hardwick v. Price, 114 Ga.App. 817(3), 152 S.E.2d 905; Jackson v. Miles, 126 Ga.App. 320, 321(2), 190 S.E.2d 565.
b). Defendant's request number 5, which as stated above the court...
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