Slaton v. Hall

• Docket Number: 6888. [*]
• Decision Date: 15 May 1929
• Parties: SLATON v. HALL.
• Court: Georgia Supreme Court

, Slaton v. Hall

148 S.E. 741

168 Ga. 710

SLATON v. HALL.

No. 6888. ^[*]

Supreme Court of Georgia

May 15, 1929

Adhered to on Rehearing July 10, 1929.

Syllabus by the Court.

"This court is not bound by the interpretation of the common law made by the courts of Alabama, although the injury for which suit is brought occurred in that State, but this court will decide what is the common law. As to the construction which the courts of that State place upon its own statutes or other local laws bearing upon the case, this court will follow their decision."

The case of Atlanta & C. Air-Line Ry. Co. v. Tanner, 68 Ga. 384(3), after formal review, is overruled.

The Court of Appeals erred in holding contrary to the above-stated rule.

Certiorari from Court of Appeals.

Suit by A. L. Hall, administrator, against E. B. Slaton. Judgment for defendant was reversed by the Court of Appeals (38 Ga.App 619, 144 S.E. 827), and defendant brings certiorari. Reversed.

Graham Wright, of Rome, for plaintiff in error.

Hugh Reed, of Center, Ala., and Porter & Mebane, of Rome, for defendant in error.

GILBERT J.

The exceptions are to the rulings in headnotes 1, 2, 6, and 8 in the decision of the Court of Appeals to whom the writ of certiorari was directed by this court upon application of plaintiff in error. Hall v. Slaton, 38 Ga.App. 619 144 S.E. 827. The exceptions to headnotes 1, 2, and 8 are that they are contrary to law, because they purport to construe the "unwritten law" of the state of Alabama, when there is no such law known to the courts of this state; because they "in effect apply to this State the common law as declared by the law of a sister State which is at variance with that declared by the courts of this State"; because they "tend to apply within this State the decision of a court of a foreign jurisdiction construing the common law at variance with the decisions of the courts of this State, construing the common law as applied and declared by the courts of this State"; and because "only a statute or the common law can be recognized and applied within this State," whereas the decision complained of "recognizes that neither a statute of Alabama nor the common law is applicable to the facts of this case." The exceptions to the ruling contained in headnote 6 are that it sets up a rule of legal liability at variance with former rulings of the Court of Appeals and the Supreme Court, the standard for determining liability being gross negligence under the law as already laid down, whereas this headnote makes that standard ordinary care; and that said headnote, rendered by the Second Division of said court, is at variance with the rule in such cases as laid down by the First Division thereof in Epps v. Parrish, 26 Ga.App. 399, 106 S.E. 297; Harris v. Reid, 30 Ga.App. 187, 117 S.E. 256, and Peavy v. Peavy, 36 Ga.App. 202, 136 S.E. 96.

The suit was brought by the administrator of Carl Hall. The petition alleges that the defendant, Slaton, a resident of Floyd county, Ga., while in the state of Alabama, requested Carl Hall to go with him in his automobile to point out the location of a person sought by the defendant; that Hall occupied said automobile as a guest; and that, by reason of the negligence of the defendant, Hall was killed. As authority for bringing the suit as administrator, section 5696, Code Ala. 1923 (Civil Code), was pleaded, as follows: " Action for wrongful act, omission, or negligence causing death.--A personal representative may maintain an action, and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death." Petitioner also pleaded section 6267, Code Ala. 1923 (Civil Code), which is as follows: "No person shall operate a motor-vehicle upon the public highways of this State recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highways, or so as to endanger property or the life or limb of any person. A rate of speed in excess of thirty miles an hour for a distance of a quarter of a mile shall be presumed evidence of traveling at a rate of speed which is not careful and prudent." Also section 3328, Code Ala. 1923 (Criminal Code), as follows: " Reckless driving of motor-vehicles prohibited; Punishment for.--Any person who shall operate a motor-vehicle upon the public highways of this State recklessly, having regard to the width, traffic and use of the highway, or so as to endanger property, or the life or limb of any person, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not exceeding five hundred dollars, and may in the discretion of the court be sentenced to imprisonment in the county jail or to hard labor for the county for a period not exceeding six months." The petition also set up the following excerpts from the decision of the Alabama Supreme Court in Rush v. McDonnell, 214 Ala. 47, 106 So. 175: "The driver of an automobile owes the same duty to a guest riding in his car that he owes to a stranger on the highway, the duty to use due care not to do him an injury in the operation of the car. Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L.R.A. 1916E, 1190; McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508. And, so far as proximate result is concerned, the one injury is as much to be anticipated, and is as directly related to the incompetent operation of the car, as is the other." One not a common carrier, who voluntarily undertakes to transport another, is responsible for injury to the person transported resulting from negligence, whether the service was for compensation or was gratuitous. Where the occupant of an automobile has no control over the driver, even though the relation of carrier and passenger does not exist, the doctrine of imputed negligence does not apply to the passenger. "The duty of the owner and driver of an automobile to the occupant of the car is to exercise reasonable care in its operation not to unreasonably expose to danger and injury the occupant by increasing the hazard of the method of travel, but he must exercise the care and diligence which a man of reasonable prudence engaged in like business would exercise for his own protection and the protection of his family and property."

On the hearing the defendant demurred to that portion of the petition which pleaded the Supreme Court decisions. The demurrers were sustained, and the plaintiff excepted. The case proceeded before the jury, and after introduction of the plaintiff's evidence the court awarded a nonsuit, and to this judgment plaintiff also excepted. The case went to the Court of Appeals upon writ of error, and that court reversed the judgment, holding that the trial court erred in sustaining the demurrers and in awarding the nonsuit. A petition for the writ of certiorari filed in this court was granted to review the rulings of the Court of Appeals. Error is assigned upon the rulings contained in headnotes 1 and 2 in the decision by the Court of Appeals, which are as follows: "1. In a suit instituted in a court of this State to recover damages for a tort committed in another State, where the plaintiff pleads in the petition, as the law of the other State applicable to the case upon its merits, not a statute of that State, but the law of that State as interpreted by the courts of that State and applied in that State, a rule which differs from the common-law rule as construed and applied by the courts of this State, the plaintiff is not pleading the common law of the foreign State, but is pleading that the law of the foreign State applicable to the case is other than the common law. Selma, Rome & Dalton Railroad Co. v. Lacy, 43 Ga. 461, 463; Pattillo v. Alexander, 96 Ga. 60, 22 S.E. 646, 29 L.R.A. 616. 2. In a suit instituted in a court of this State to recover damages for a tort committed in another State, which is a State in which the common law prevails--as the State of Alabama--the plaintiff may plead and prove, as the law applicable to the merits of the case, both the statutory and unwritten law of that State, which is other than the common law as would be applied to a similar situation by the courts of this State, and the courts of this State will apply to the case the law of the foreign State thus pleaded and proved, as construed and interpreted by the courts of that State. See 22 C.J. 928; Minor on Conflict of Laws, § 530; 12 C.J. 200; Story on Conflict of Laws, § 642; 13 Am. & Eng. Enc. Law (2d Ed.) 1069; 6 Am. & Eng. Enc. Law (2d Ed.) 268; Houghtaling v. Ball, 19 Mo. 84 (59 Am.Dec. 331)."

1. As interpreted by the Court of Appeals the petitioner did not plead the common law, but some law other than the common law. What was that law? Section 5696, Code Ala. 1923 (Civil Code) was pleaded, but that was merely a statute conferring power upon an administrator to bring suit within the state of Alabama, but not elsewhere, for damages in a case of homicide. It does not purport to prescribe in any way what rule of law shall be applied with respect to the degree of care required in such case, or the degree of negligence which would in law create a liability on the part of the defendant. The penal statutes do not prescribe such rule in a suit for damages, but are applicable in a prosecution by the state for a violation thereof. What law is declared by the Supreme Court of Alabama? Is it an "unwritten law" other than the common law, or is it merely...