Ussery v. Koch, s. 42481

• Decision Date: 28 February 1967
• Docket Number: No. 3,42482,Nos. 42481,s. 42481,3
• Citation: 154 S.E.2d 879,115 Ga.App. 463
• Parties: Wade C. USSERY v. Richard C. KOCH et al. Frankie Nell PEACOCK v. Richard C. KOCH et al
• Court: Georgia Court of Appeals

Page 879

154 S.E.2d 879

115 Ga.App. 463

Wade C. USSERY v. Richard C. KOCH et al.

Frankie Nell PEACOCK v. Richard C. KOCH et al.

Nos. 42481, 42482.

Court of Appeals of Georgia, Division No. 3.

Feb. 28, 1967.

Rehearings Denied March 28, 1967.

Certioraries Denied May 18, 1967.

Syllabus by the Court

1. (a) In passing upon a motion for summary judgment a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.

(b) On motion for summary judgment, in this case, the court is not concerned with the credibility of affidavits, only with the matter of whether they show a genuine issue of fact to exist.

2. The addition of an allegation that the defendants were changing drivers would not render the other allegations of the petition so disjunctive or inconsistent as to preclude recovery.

3, 4. The trial judge erred in sustaining the special demurrers to the petition.

These two cases arising out of an automobile collision, brought in Dougherty Superior Court, are virtually identical as to content. In Case No. 42481 the father of the decedent, Martha Ussery, seeks to recover as damages funeral expenses and loss of services of his daughter; in Case No. 42482 the mother of the decedent seeks to recover damages for her daughter's wrongful death. The actions were brought against Richard Koch, Mary Helen Ailstock, Patricia Green, and William Jones, as administrator of the estate of Kay Langley, deceased. Each of the two petitions is in three counts, the pertinent allegations of which follow. For the purpose of clarity we shall consider these two petitions as being but a single petition.

Count 1 alleges that the deceased was killed on October 1, 1965, as a result of an automobile collision while she was riding as a guest in the automobile owned by the defendant Ailstock, and being driven in the presence of and under the control of the defendant Koch who was riding in the front seat; that the automobile was owned and furnished by the defendant Ailstock for the comfort, pleasure and convenience of her minor son, the defendant Koch, and being used by him for that purpose; that the automobile was proceeding south on U.S. Highway 19 (Georgia Highway 3) approximately two miles south of Smithville at a speed of 70 miles per hour and passed a point on the highway where it curved slightly towards the east and then quickly curved back to the south, making a 'jog' in the highway; that the defendant Green and the deceased Langley, riding in the front seat, were engaged in the process of changing drivers under the steering wheel while the car was proceeding over and across the 'jog' at a speed of 70 miles per hour, these acts taking place in the presence of the defendant Koch; that, while the defendants were in the process of changing drivers, the automobile crossed the center line onto the northbound lane and collided with a 1962 Ford Falcon driving north; that the speed limit on the highway was 50 miles per hour.

The petition alleged that the plaintiff's daughter was killed because of the gross negligence of the defendant Green and the deceased Langley: 1) in attempting to change drivers at a speed of 70 miles per hour, 2) in driving the vehicle in excess of 70 miles per hour in violation of Code Ann. § 68-1626(b, 2) (Ga.L.1953, Nov.Sess., pp 556, 577; as amended Ga.L.1963, p. 26, Ga.L.1964, pp. 294, 295, Ga.L.1965, p. 322), 3) in permitting the car to cross the center line onto the east lane and failing to drive on the right as required by Code Ann. § 68-1633(a) (Ga.L.1953, Nov. Sess., pp. 556, 581), and (4) in failing to pass an approaching vehicle on the right, Code Ann. § 68-1634 (Ga.L.1953, Nov. Sess., pp. 556, 582). According to the averments of the petition, at the time of the collision the car was in the custody of the defendant Koch for family purpose use and being driven by the two defendants under the defendant Koch's control and thus he was responsible for the gross negligence; that the defendant Ailstock was responsible under the family purpose doctrine by reasons of the facts alleged. Count 1 seeks recovery against all the defendants.

Count 2 makes substantially the same allegations as Count One except that it does not seek to recover damages against defendant Green, but seeks to recover damages against defendant Jones, alleging that defendant Jones' decedent, Kay Langley, was driving the automobile at the time of the collision. Count 3 makes substantially the same allegations as the other two counts, but seeks to recover against defendant Green rather than defendant Jones, alleging that defendant Green was driving the automobile at the time of the collision.

Each of the three counts seeks to recover judgment against defendants Ailstock and Koch under the family purpose doctrine.

The defendants Jones and Green filed separate general and special demurrers, and answers generally denying the allegations of the petition. The defendants Koch and Ailstock filed separate answers, generally denying the allegations of the petition.

The defendant Jones filed a motion for summary judgment on Count 1 only, and the trial judge granted the summary judgment as to Count 1, and immediately thereafter sustained all of the demurrers, both general and special, of the defendant Jones to Counts 2 and 3 of the petition as amended, and struck and dismissed these two counts. Thereafter, defendant Green filed a motion for a summary judgment on the same identical grounds as defendant Jones, and the court granted the summary judgment of defendant Green, and sustained the demurrers, both general and special, of Green to Counts 1 and 2, and struck and dismissed these two counts. Thereafter the defendants Koch and Ailstock each filed separate motions for summary judgment on the same grounds as defendants Jones and Green, and also separate motions to dismiss the plaintiff's petition for failure to state a cause of action. The court granted each of these motions for summary judgment and sustained each of the motions to dismiss.

The plaintiffs appeal to this court and enumerate as error: the grant of the summary judgments as to Count 1 of the petition; the sustaining of the general demurrers and motions to dismiss as to Counts 2 and 3 of the petition, the sustaining of the special demurrers on the grounds that the petition was multifarious and there was a misjoinder of parties and causes of action, and the sustaining of certain other special demurrers.

Farkas, Landau & Davis, James V. Davis, Albany, for appellants.

Divine & Busbee, George D. Busbee, Edgar B. Wilkin, Jr., S. B. Lippitt, Watson, Keenan, Spence & Lowe, Frank H. Lowe, Jr., Albany, for appellees.

QUILLIAN, Judge.

1. Insofar as the motion for summary judgment on Count 1 is concerned we consider the question: did the record reveal there was a genuine issue of fact as to whether the defendant Green and the defendant Jones' intestate, Kay Langley, were changing drivers at the time of the accident as alleged in the petition?

In regard to this issue the evidence showed that during the course of the ride there were driver changes at various stops but at no time while the car was in motion was there a change of drivers. While the testimony of the witnesses was confused and contradictory as to exactly who was driving at the time of the fatal collision, there was no testimony as to swapping drivers while the car was proceeding on the highway. Instead, such fact was positively denied by the defendant Koch.

(a) The plaintiff urges that since at the accident scene the two girls, alleged to be changing drivers, were found lying next to the steering wheel, this would be a circumstance tending to support plaintiff's theory. While we recognize the value of physical evidence, and the position of the bodies might lend credence to other evidence of the driver swapping theory, standing alone it would be susceptible to many possible interpretations. Where there is direct evidence denying that the defendants were changing drivers, the mere fact that the two were found at the scene lying together under the steering wheel would not be evidence to the contrary. '(W)here a finding of fact may be inferred but is not demanded by circumstantial evidence, it will not support a verdict when by the positive and uncontradicted testimony of an unimpeached witness perfectly consistent with the circumstantial evidence, it is shown that no such fact exists. Myers v. Phillips, 197 Ga. 536, 29 S.E.2d 700. * * * For circumstantial evidence that a fact exists to have probative value against direct and unimpeached evidence that the fact does not exist, such evidence 'must point at least more strongly to a conclusion opposite to the direct testimony.' Griffin v. Blackshear Bank, 66 Ga.App. 821, 825, 19 S.E.2d 325, 328.' Chancey v. Shirah, 96 Ga.App. 91, 94, 99 S.E.2d 365. Neill v. Hill, 32 Ga.App. 381, 382(2), 123 S.E. 30; Federal Reserve Bank of Atlanta v. Haynie, 46 Ga.App. 522(1), 168 S.E. 112; King v. Sharpe, 96 Ga.App. 71, 78, 99 S.E.2d 283.

Despite the application of the rule that the party opposing the motion for summary judgment must be given the benefit of all favorable inferences (McCarty v. National Life Ins. Co., 107 Ga.App. 178, 179, 129 S.E.2d 408), here the circumstantial evidence was without probative value. Hence, there is no genuine issue of material fact to be resolved by the trier of facts, and the movants are entitled to a judgment.

(b) The plaintiff also argues that since the defendant Koch at one time stated to a patrolman that he was driving and then later testified that Kay Langley was driving, this contradiction creates a doubt as to his credibility which would leave his testimony subject to being impeached and thus for a jury to resolve. Counsel for plaintiff points out that it is the jury's prerogative to ascertain if a witness has been impeached and then...