Slaton v. Hall
| Decision Date | 15 April 1931 |
| Docket Number | 7973. |
| Citation | 158 S.E. 747,172 Ga. 675 |
| Parties | SLATON v. HALL. |
| Court | Georgia Supreme Court |
Motion to Rehear Denied May 14, 1931.
Syllabus by Editorial Staff.
Liability of automobile driver for homicide of guest depends on gross negligence of driver causing homicide.
Petition alleging automobile driver approached on downgrade to covered bridge at night at 60 miles per hour, after being warned to drive cautiously, stated case of homicide by gross negligence.
State cannot deny, to one having transitory cause of action originating therein under its statutes, right to enforce cause of action in another state (28 USCA § 688).
28 USCA § 688 requires courts of several states to enforce any transitory cause of action created by statute of sister state, not opposed to settled policy of state wherein cause of action was sought to be enforced.
In action for death occurring in Alabama, Alabama statute limiting suits to courts of Alabama held not to defeat jurisdiction of Georgia court (28 USCA§ 688; Code Ala 1923, § 5696).
Code Ala. 1923, § 5696, provided that personal representative could maintain action and recover such damages as jury might assess in court of competent jurisdiction within state of Alabama, and not elsewhere, for wrongful act or negligence causing death.
Supreme Court will follow decisions of foreign courts construing foreign statutes applicable to case.
Error from Superior Court, Floyd County; James Maddox, Judge.
Action by A. L. Hall, as administrator of Carl Hall, deceased against E. B. Slaton. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.
Affirmed.
See also, 168 Ga. 710, 148 S.E. 741; 40 Ga.App. 288, 149 S.E 306.
On May 12, 1926, A. L. Hall, as administrator of Carl Hall, brought in the superior court of Floyd county, his action against E. B. Slaton, to recover damages for the homicide of the deceased. The petition makes in substance the following allegations:
The defendant was traveling in a big six-cylinder sedan automobile, weighing 3,000 pounds, from Rome, Ga., to Newberry's Pond in Alabama. On the evening of May 5, 1925, deceased was at the home of a neighbor, where he had gone to nurse an uncle who was ill. About 7:30 p. m. of that day Slaton, traveling in his automobile, came to the place where the deceased was. The defendant was on his way to Newberry's Pond, near Round Mountain, to get Holmes Smith, a business associate of O. Willingham; the latter being in a dying condition, and bring him back to Rome. The defendant did not know the way to Newberry's Pond. So he asked the deceased if he would not go with him in his automobile and show him the way to said place. The deceased agreed to go and show the defendant the way to said place. On the way to Newberry's Pond the defendant drove over and through, and so became familiar with, a certain covered bridge which spanned the Chattooga river at a point approximately 2 miles beyond Cedar Bluff, and about 12 miles from where the deceased lived, and about 8 miles from Newberry's Pond. Said bridge was 125 feet in length and 12 feet wide. The defendant reached Newberry's Pond, got Smith, and started on the return trip. The defendant and Smith on the return trip rode on the front seat of the automobile, the defendant driving the same; and the deceased occupied the rear seat. On the return trip Smith cautioned the defendant to drive his automobile cautiously. This occured before they reached said covered bridge. For a distance of 120 yards before reaching said bridge the road was downgrade. At a distance of 60 yards from said bridge there was a curve in the road, which bore to the right and went directly into said covered bridge. About 9 o'clock at night the defendant drove said automobile onto said bridge and ran the same through the right side thereof into the water of the river beneath, whereby the deceased was killed. As said automobile was driven into said bridge its right hub struck the fourth, fifth, sixth, seventh, and eighth studdings on the right side of said bridge, said studdings being 4 inches square and 12 feet in length, and cut, broke, and tore all of said studdings in two. The sixth, seventh, and eighth studdings on the western end of said bridge were torn loose from the bottom of the bridge to which they were fastened with 20-penny nails. Said studdings were also torn loose from the planks at the top of said bridge to which they were fastened with 20-penny nails. Said studdings were braced with timbers 4 inches square, and nailed with 20-penny nails, for the purpose of making the side of the bridge solid, substantial, and safe. Said braces and planks, the latter being 8 inches wide and one inch thick and nailed to the side of said bridge with 10-penny nails, were torn loose for a distance of 24 feet, as the result of the powerful impact of the automobile against the side of the bridge. The right side of the bridge, beginning at a distance of 10 feet from the end thereof and extending for a distance of 24 feet, was completely torn loose from said bridge; the automobile plowing through the right side of said bridge and leaping a distance of 25 feet from the bridge into the river. The neck of the deceased was broken, and he died in the waters of the river. The automobile was driven onto the bridge at the dangerous and reckless speed of 60 miles an hour. The deceased was free from negligence and fault, and his death was caused solely by the recklessness and carelessness of the defendant in driving the automobile as aforesaid. Defendant negligently, carelessly, and without using reasonable and ordinary diligence drove the automobile onto the bridge and through the side thereof, and killed the deceased. If the defendant had used reasonable and ordinary care and diligence, and had driven said automobile onto said bridge at a reasonable rate of speed, the deceased would not have been killed. It was negligent in the defendant to drive said automobile onto said bridge, which was only 12 feet wide, at said high and dangerous rate of speed, with his hub-cap extending a distance of one inch out and beyond the fenders of his automobile, and where the defendant was liable to and did drive said automobile into and through the side of said bridge and into said river as aforesaid.
Petitioner based his right to recover for the homicide on section 5696 of the Civil Code of Alabama (), and his right to recover of the defendant on section 6267 of the Civil Code of Alabama, 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." It was alleged that the defendant violated said Code provision in operating in the manner above described his automobile recklessly, and at a speed which was not reasonable and proper, having regard to the width and use of the highway, and so as not to endanger the life of the deceased. Petitioner also based his right to recover upon section 3328 of the Criminal Code of Alabama, which is 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." It was alleged that the defendant violated said penal statute, in that he operated said automobile at said time recklessly and without regard to the width of the bridge and its approach, and in such a way as to endanger the life and limb of the deceased; and because of said violation defendant was guilty of negligence per se, and petitioner is entitled to recover from him for the death of the deceased. Plaintiff prayed for judgment against the defendant in the sum of $25,000.
On May 31, 1926, defendant demurred to said petition, on the ground that it set forth no cause of action. On November 26, 1926, the trial judge overruled this demurrer, and on the next day the defendant filed his certified exceptions pendente lite to that judgment. He assigns error on these exceptions.
On July 11, 1927, the plaintiff amended his petition as follows:
Paragraph 9. The appellate court of Alabama, on January 18, 1927, in the case of Hammell v. State, 21 Ala. App. 633, 111 So. 191, in construing section 3328 of the Criminal Code of that state, as set forth in his original petition, and section 6267 of the Civil Code of that state, as set forth in his petition, made these rulings:
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