Strickland v. Doran

• Decision Date: 13 November 1973
• Docket Number: No. 48150,Nos. 1,2,3,48150,s. 1
• Citation: 130 Ga.App. 396,203 S.E.2d 567
• Parties: Margie E. STRICKLAND v. Phillip J. DORAN
• Court: Georgia Court of Appeals

Page 567

203 S.E.2d 567

130 Ga.App. 396

Margie E. STRICKLAND v. Phillip J. DORAN.

No. 48150.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 13, 1973.

Rehearing Denied Dec. 6, 1973.

G. Ralph Burger, Atlanta, for appellant.

Savell, Williams, Cox & Angel, Edward L. Savell, Elmer L. Nash, Atlanta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Mrs. Margis Strickland, plaintiff, filed suit against P. J. Doran, defendant, because defendant drove his car into and over the body of Larry Strickland and killed him. The lower court granted a summary judgment in favor of defendant, and plaintiff appeals. Held:

The learned and respected judge in the lower court has fallen into grievous error at the very outset in seeking to equate this case with that of Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6. The facts in the two cases are so widely variant that the Southland case cannot be equated with this case. The Supreme Court gave the facts of the Southland case, and we are bound by them, as follows: 'As we construe the evidence, a finding was demanded that the deceased was lying drunk in the road, without physical capacity to move himself, in the nighttime, at a point just over the crest of a slight hill, where the lights of an automobile approaching over the hill would not shine on the body of the deceased until it arrived within 12 or 14 feet of the body, and the undisputed evidence of the driver of the truck was that he did not see the deceased until he was within 12 or 14 feet of him and that he did everything within his power to avoid striking the deceased after discovering his presence in the highway by swerving his truck. The further undisputed evidence is that the truck was traveling at a lawful rate of speed of 35 or 40 miles per hour, with its lights on bright.' (Emphasis supplied.) Thus, the Southland case is definitely and positively one wherein the body of the deceased could not be seen at all until the lights of the motor vehicle shone upon him, as it was at night, and those lights did not shine on him until within 12 or 14 feet of the body. Further, the driver in the Southland case swore he did not see the deceased until he was within 12 or 14 feet of him; and made no claim that he mistakenly thought the body was an inanimate object. Further, his bright lights were on, and he was running at a lawful rate of 35 to 40 miles per hour.

A well-known and established rule of law is that testimony of a party when offered in his own behalf must be construed most strongly against him, and he is not entitled to a finding in his favor if that version the most unfavorable to him shows the verdict should be against him. Sou. Ry. Co. v. Hobbs, 121 Ga. 428(1), 49 S.E. 294.

This rule has been adhered to and, if possible, made stronger against the party who moves for a summary judgment. Holland v. Sanfax, 106 Ga.App. 1, 4, 5, 126 S.E.2d 442; McCarty v. Nat'l Life & Acc. Ins. Co., 107 Ga.App. 178, 179, 129 S.E.2d 408. All inferences arising from testimony must be construed in favor of the party who opposes a motion for summary judgment. If the party fails to answer forthrightly when direct questions are put to him, or answers in a vague and ambiguous fashion, the inference arises that a straight and direct answer would have been hurtful to the party moving for the summary judgment.

Shortly before Strickland was killed, another motorist traversed the same highway, headed in the same direction as was the Doran car. The driver of that earlier vehicle swore that both he and his father saw the object 50 to 60 feet away; his father asked him to drive into the other lane so as to avoid striking the object, which he did, and passed without incident.

Absolutely no plausible explanation is given for Doran's failure to drive as did the preceding motorist, and thus avoid running over and killing Strickland. All he had to do was to drive into the other lane. If he was observant and vigilant in keeping a watch-out ahead of him, as he was duty bound to be under the law (see Leggett v. Brewton, 104 Ga.App. 580(3), 122 S.E.2d 469), then he could have easily driven past Strickland without coming into contact with his body.

Now let us compare the facts in the Southland case with the facts in the instant case, and at the same time point out wherein defendant Doran testified in a most unsatisfactory manner, giving vague and ambiguous answers to pertinent questions.

1. In Southland, the driver was within 12 to 14 feet of the person who was lying in the highway before he could see him-while in the instant case the driver, Doran, was 50 to 60 feet away when he discovered Strickland lying in the highway.

2. In Southland, the driver had his bright light on, whereas in the instant case, the driver, Doran, ws not certain whether his lights were on bright or dim.

3. In Southland, the motor vehicle was being operated at 35 or 40 miles per hour, which was a lawful rate of speed; but in the instant case, the driver, Doran, fails to tell the rate of speed, designating it only as 'moderate.'

Further, it is important here to note certain other testimony of the defendant, Doran, as follows: a. He was uncertain as to whethet it was raining at the time, and was uncertain as to whether the road was dry. b. Doran's attention was such he claims that he never did discover that Strickland was a human being, and had no such knowledge until his wife told him; then and only then did he apply brakes. c. Doran did not disclose how near he was to Strickland when his wife told him that they were approaching a person and absolutely nothing is suggested to show that he did not have time to turn into the other land to avoid striking Strickland. d. Doran did not know whether his windows were up or down; whether his radio, defroster, or windshield wipers were turned on or off; he did not remember whether there was conversation going on among the occupants of his car. c. Doran did not know the length of the skidmarks left by his car.

We repeat that the Southland case cannot be equated with the instant case. It was impossible for the Southland driver to avoid running over the prone person in the 12 or 14 feet after discovery; whereas, in the instant case, there were 50 to 60 feet allowed, and another driver had shortly before safely turned into the other lane and thus avoided striking the prone body of Strickland. Why couldn't and why didn't Doran do likewise?

The Southland driver was driving at 35 to 40 miles per hour which was a lawful rate of speed. We do not know how fast Doran was driving, but it must have been at a high and reckless rate of speed. He would only say it was 'moderate' speed, which is completely meaningless, and such ambiguous and vague testimony must be construed most strongly against him. His failure to stop or to turn into the other lane most likely was caused by his high and reckless speed.

The Southland driver had his bright lights on, as Doran should have done; but Doran does not remember whether his lights were on bright or dim. Could it be that they were not even turned on? Especially as he did not know whether his windows were up or down; nor whether his windshield-wipers were turned on, nor whether his defroster was on or off, nor whether his radio was on or off. Doran was uncertain whether it was raining, or whether the pavement was dry, but he 'believed' it was not raining, and he 'believed' the road was dry. How could a normal person fail to remember such important events at the time he ran over and killed a human being?

The defendant in this case can secure no comfort whatever through contending that he saw the object 50 to 60 feet away (the driver of the first car said 60 feet), but did not know it was a human being. He never did tell how far away he was when he realized he was approaching a human being. But even so, in Georgia Sou. Ry. Co. v. Wilson, 93 Ga.App. 94, at page 111, 91 S.E.2d 71, at page 83, this court, in defining the duty of an engineer on a railroad engine who discovers what he thought to be an inanimate object, holds: '. . . it has been held that where an object is observed on the track and the employees are uncertain what it is, it is the duty of the engineer to take steps immediately to stop the train, even though the person on the track be a treapasser. (Cits.) Central of Georgia Ry. Co. v. Pelfry, 11 Ga.App. 119, 74 S.E. 854, 857.'

Nor can the defendant escape liability by urging that the person he ran over was lying in the road because of intoxication. The drunken person does not thereby forfeit all rights to live and breathe. He cannot be wantonly killed under such circumstances, and one who causes his death by committing wilful negligence is liable for the consequences. See Fox v. Pollard, 52 Ga.App. 545, 548, 183 S.E. 854.

Of course, 'wilful negligence' does not necessarily mean that the actor intended to deliberately kill the deceased. If there is such an absence of care as to raise the presumption of conscious indifference, this fulfills the definition of wilful negligence. Frye v. Pyron, 51 Ga.App. 613(3),181 S.E. 142.

In addition to the rule of law which requires that all evidence and inferences arising therefrom in motions for summary judgment be construed most unfavorably towards the movant, attention is also called to the rule of law which specifically requires that all questions of negligence, comparative negligence, and all degrees of negligence, be determined by a jury, and not by a judge on motion for summary judgment. Reed v. Batson-Cook Company, 122 Ga.App. 803(3b), 178 S.E.2d 728.

For all of the foregoing reasons, the judgment of the trial court in granting a summary judgment to the defendant is reversed.

Judgment reversed.

PANNELL, DEEN, QUILLIAN and STOLZ, JJ., concur.

BELL, C.J., HALL and EBERHARDT, P. JJ., and CLARK, J., dissent.

CLARK, Judge (dissenting).

We find ourselves in disagreement with the foregoing opinion because of a...