Teague v. Keith

• Court: Georgia Supreme Court
• Writing for the Court: MOBLEY; All the Justices concur, except DUCKWORTH
• Citation: Teague v. Keith, 214 Ga. 853, 108 S.E.2d 489 (Ga. 1959)
• Decision Date: 10 April 1959
• Docket Number: No. 20412,20412
• Parties: John Bill TEAGUE v. Inez KEITH

Page 489

108 S.E.2d 489

214 Ga. 853

John Bill TEAGUE v. Inez KEITH.

No. 20412.

Supreme Court of Georgia,

April 10, 1959.

J. R. Cullens, Cartersville, for plaintiff in error.

Wm. A. Ingram, Cartersville, for defendant in error.

Syllabus Opinion by the Court

MOBLEY, Justice.

The plaintiff in error--who was the defendant in a petition to recover damages for personal injuries resulting from the collision of an automobile in which the plaintiff was riding and one the defendant was driving at an intersection of two roads--excepts to the judgment of the Superior Court of Bartow County overruling his demurrers, denying his oral motion to dismiss the petition, and denying his motion for new trial on the general and twelve special grounds. This case was submitted on briefs without oral argument; and the plaintiff in error not having referred in his brief to the general grounds and to special grounds 5, 9, 11, 13, 14, and 15 of the amended motion for new trial, as well as subgrounds (1), (12), and (13) of ground 7; subgrounds (3), (4), (5), (6), (9), and (10) of ground 8; subground (3) of ground 10; and subgrounds (3) and (4) of ground 12--they are considered abandoned. Held:

1. The first and second demurrers attack the constitutionality of Code (Ann.) § 68-1626(a) and (c) as being in violation of the due-process-of-law clauses of the State and Federal Constitutions. Const. art. 1, § 1, par. 3; U.S.C.A.Const. Amend. 14. The objection to that portion of Code (Ann.) § 68-1626(a) which provides that, 'In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care,' and to that portion of Code (Ann.) § 68-1626(c) which provides that 'The driver of every vehicle shall, consistent with the requirements of subdivision (a), drive at an appropriate reduced speed when approaching and crossing an intersection * * *' is that each fails to define sufficiently the act or acts prohibited, and is too vague, indefinite, and uncertain to be enforceable. These sections are similar (as the parties agree) to the act of 1910 providing that 'no person shall operate a machine on any of the highways of this State as described in this Act at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property * * *' Ga.L.1910, p. 92, § 5. This court, in considering that provision, ruled in Strickland v. Whatley, 142 Ga. 802(1), 83 S.E. 856: 'While so much of the act of August 13, 1910 (Acts 1910, p. 92) § 5, regulating the use of automobiles on the highways of this state, and prohibiting their operation 'at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property,' as makes a violation of the act penal is too uncertain and indefinite in its terms to be capable of enforcement (Empire Life Insurance Co v. Allen, 141 Ga. 413, 81 S.E. 120; Hayes v. State, 11 Ga.App. 371, 75 S.E. 523), the measure of care laid down in the act is not too indefinite to furnish a rule of civil conduct. Indeed, in most respects it is not greatly different from the rule of ordinary care which would apply in the absence of a statute. There was accordingly, no error in giving it in charge to the jury in a proper case.' See also Quarles v. Gem Publishing Co., 18 Ga.App. 592(3), 595, 90 S.E. 92; Atlanta Coach Co. v. Curtis, 42 Ga.App. 639, 640(3), 157 S.E. 344; He-Po Gas, Inc. v. Roath, 87 Ga.App. 827, 834(5), 75 S.E.2d 451; Willis v. Jones, 89 Ga.App. 824, 827(2), 81 S.E.2d 517; and 5A Am.Jur. 246, § 38. The Court of Appeals, in Garmon v. Cassell, 78 Ga.App. 730(2) (b), 737, 52 S.E.2d 631, held that the term 'immediate control' as used in Code, § 68-304 (repealed by Ga.L.1953, Nov.Sess., pp. 556 and 621) to require that the driver of a motor vehicle, 'upon approaching or passing any person walking in the roadway * * * shall at all times have the same under immediate control,' was not too vague, indefinite, and uncertain to be enforced in a civil case. As pointed out in 60 C.J.S. Motor Vehicles § 290, p. 678, irrespective of statutory requirements, 'It is the duty of the operator of a motor vehicle to keep it under reasonable control, so that he may avoid collisions with, and injury to, other users of the highway who are themselves exercising reasonable care, if he may avoid such collision or injury by the exercise of ordinary care on his part.' Where a statute provides a general rule of conduct, although only amounting to a requirement to exercise ordinary care, the violation thereof is negligence as a matter of law, or negligence per se, whereas in the absence of such specific statute the jury is left to determine whether such conduct constitutes negligence. Hollomon v. Hopson, 45 Ga.App. 762(3), 166 S.E. 45. The statutes here complained of state rules of civil conduct and as such are not too vague, indefinite, and uncertain to be enforced. Even though Strickland v. Whatley, supra, is not a full bench decision and the plaintiff in error asks that we not follow it, we are of the opinion that the decision is sound, that the ruling there made is applicable to the provisions here attacked, and that these provisions are not violative of the due-process clauses of the Federal and State Constitutions for any reason assigned.

2. The four special grounds of demurrer, (a), (b), (c), and (d), to paragraph 3 of the petition are without merit.

(a) Whether there were any markers or signs controlling traffic at the intersection was immaterial, in view of the allegation that the car in which the plaintiff was riding stopped at the intersection before entering it, and since the defendant is not charged with violating any signs or markers controlling traffic at the intersection.

(b) Whether the defendant was approaching the intersection from the plaintiff's right or left at the time of the collision is immaterial, because the petition alleged that, about the time the front end of the car in which the plaintiff was riding had passed the intersection, the defendant came down the road at 45 or 50 miles per hour, saw the car in which the plaintiff was riding, applied his brakes, etc., and crashed into the car, as under these alleged facts and Code (Ann.) § 68-1650(a), 'The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway,' the plaintiff had the right of way.

(c) The plaintiff is not required to negative in her petition her own negligence or that of the driver of the car in which she was riding. For that reason, it was neither necessary for the plaintiff to allege whether or not she or the driver of the car in which she was riding saw or could have seen the defendant before entering the intersection; nor was it necessary for her to allege the speed of the car in which she was riding. Fisher Motor Cab Co. v. Seymour & Allen, 9 Ga.App. 465(1), 71 S.E. 764; Hardwick v. Figgers, 26 Ga.App. 494(2), 106 S.E. 738; Sims v. Martin, 33 Ga.App. 486, 488(8), 126 S.E. 872; Southern Stages v. Clements, 71 Ga.App. 169(2) (d), 30 S.E.2d 429.

3. The oral motion of the defendant to dismiss, in the nature of a general demurrer, was based primarily on the grounds set out in his special demurrers, discussed and ruled on in division 2 above. The petition alleged a cause of action, and the trial court properly denied the motion to dismiss.

4. It was not error, for any reason assigned in ground 4 of the amended motion, for the court to charge to the effect that, in considering the evidence in this case, if you find any conflicts about material matters, it will be your duty to reconcile the conflicts if possible and not to impute perjury to anyone; but if you cannot do so, it is then your duty to believe that witness or those witnesses who you think are most entitled to credit at your hands. The conflict complained of is between the evidence given on the trial by the plaintiff's husband, the driver of the car, that the defendant's car was travelling 70 miles per hour, and that given in a petition filed by the witness, in which he alleged that the speed was 45 to 50 miles per hour. The court did not, as contended, by this charge order the jury to accept the evidence of the witness as to speed given at the trial and to disregard the documentary evidence; nor do we think that the jury could have so regarded the charge.

5. It was not error, as contended in special ground 6, for the court, in the absence of a written request, to fail to charge that portion of Code, § 38-1806 that, '* * * if a witness shall swear wilfully and knowingly falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.' As stated with reference to this rule of law in Smaha v. George, 195 Ga. 412, 418, 24 S.E.2d 385, 390, 'But before this principle of such total rejection, with a duty of ...