White v. Borders, s. 39135
| Citation | 123 S.E.2d 170,104 Ga.App. 746 |
| Decision Date | 02 November 1961 |
| Docket Number | No. 2,39145,Nos. 39135,s. 39135,2 |
| Parties | Mandy E. WHITE v. Andrew BORDERS. Andrew BORDERS v. Mandy E. WHITE |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
1. The degree of care owed by the operator of a motor vehicle to a passenger, in the absence of a statute, is to be determined by the common law as interpreted by the courts of the State where the action is tried rather than of the State where the injury occurred.
2. Under the allegations of the petition it cannot be said as a matter of law that the pleaded traffic regulations of the State in which the injury occurred were irrelevant as failing to show any causal connection between the negligence alleged and the proximate cause of the plaintiff's injuries.
3. Special demurrers must be filed at the first term. An amendment to a petition subsequently filed will not open up the original petition to special demurrer against paragraphs not changed by the amendment.
4. To set out a cause of action, the negligence of the defendant must be plaintly and specifically set forth. The doctrine of res ipsa loquitur cannot be invoked to aid pleadings which are deficient in this respect.
5. Counts 1 and 3 of the petition set out a cause of action based upon ordinary and gross negligence respectively.
6. The evidence in this case being sufficient to present a jury question as to whether the defendant was guilty of gross negligence in his manner of driving an automobile, resulting in his skidding off the left side of the highway and into a ditch as he was rounding a sharp curve on a steep upgrade on a dark night during a rainstorm, it was error for the trial court to grant a nonsuit as to counts 1 and 3 of the petition.
Mandy White filed a petition against Andrew Borders in the City Court of Polk County which, as amended, was in three counts. Each of the counts sets out in substance that the defendant was a passenger in the plaintiff's automobile; that two tires of the automobile were worn and slick, a condition known to the defendant; that defendant, driving in a mountainous section of the State of Tennessee and approaching a curve, was operating the vehicle at a spped of 60 to 70 miles per hour, did not keep a lookout ahead, did not have the vehicle under control as he entered the curve, did not reduce his speed, drove his vehicle across the center line of the highway and into the left half of the roadway; that the vehicle started to skid and slide, and defendant who failed to control the vehicle, drove it off the traveled portion of the road and into a ditch on the left side striking a rocky bank on the south side of the ditch; that he did not ascertain that it would be safe to drive from the right to the left lane of traffic, failed to slow down and apply his brakes, and in so doing violated certain statutes of the State of Tennessee and was guilty of other negligence as a matter of fact, and that as a result of these acts the plaintiff was seriously and permanently injured. The petition was amended four times. Certain demurrers were sustained with leave to amend, and, following amendment, all demurrers were overruled. The case went to trial and at the conclusion of the plaintiff's evidence a motion for nonsuit was granted which forms the basis of the main bill of exceptions. The judgment overruling the demurrers is excepted to in the cross-bill.
Marson G. Dunaway, Jr., Rockmart, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers & McClatchey, Barry Phillips, Thomas E. Joiner, Atlanta, William W. Mundy, Cedartown, for defendant in error.
1. Demurrer 9 to paragraph 34 of the petition challenges the plaintiff's right to plead the case law of Tennessee under which the operator of a motor vehicle owes a duty of ordinary care to a guest passenger, on the grounds that such an allegation is irrelevant and immaterial, and raises the general question of the degree of care owed to a guest. No Tennessee statute was involved in the case pleaded, but rather the interpretation by that State of the common-law duty resting upon the driver as to his passenger. This being so, the common law of Georgia rather than that of Tennessee will control in an action brought in Georgia courts even though the injury occurred in Tennessee. Slaton v. Hall, 168 Ga. 710(1), 148 S.E. 741; Motz v. Alropa Corp., 192 Ga. 176, 15 S.E.2d 237; Blankenship v. Howard, 98 Ga.App. 844 852, 107 S.E.2d 324. Thus, the allegation as to what the common law as construed by the courts of Tennessee might be was irrelevant and the demurrer should have been sustained as well as demurrer 24 to [104 Ga.App. 748] paragraph 29 of count 3. This is true even though count 1 of the petition, which originally alleged that the plaintiff was a guest passenger, had been amended by the time the demurrers were passed on to allege that she was a paying passenger, and the error was rendered harmful by reason of the fact that after the order on demurrer had been entered the plaintiff again amended her petition to read, as to this count, that she was a guest passenger rather than a paying passenger.
2. Special demurrers 9, 10, 11 and 12 to count 1 and 23 to count 3 of the petition attack allegations of the statute law of Tennessee making it negligence per se to move from the right lane of traffic before ascertaining such maneuver may be completed in safety, to fail to drive on the right side of the road, and to fail to remain within a single lane of traffic, on the ground that the petition does not show any causal connection between such negligence, if it existed, and the plaintiff's injuries. Since the petition alleges facts showing that the defendant was driving in the left lane of traffic, and did not commence to skid until he entered and drove in such lane, it cannot be said as a matter of law, taking the pleadings as true, that such negligence did not contribute to the injury. These demurrers were properly overruled. This ruling also controls special demurrers 18, 19, 20 and 21 directed to allegations of the defendant's negligence contained in count 3.
3. Special demurrers 6, 7, 8 and 10 filed after amendment of the petition, and after the appearance day, attack paragraphs of the original petition not changed by later amendment. The special demurrers were accordingly filed too late and cannot be considered. Levy v. Logan, 99 Ga.App. 253(3), 108 S.E.2d 307.
4. Defective pleadings cannot be aided by the doctrine of res ipsa loquitur. Count 2 of the petition, which merely incorporated those allegations of count 1 not relating to the defendant's negligence, and further alleged that the...
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...foreign case law. Frank Briscoe Co., Inc. v. Ga. Sprinkler Co., Inc. , 713 F.2d 1500, 1503 (11th Cir. 1983) (citing White v. Borders , 104 Ga.App. 746, 123 S.E.2d 170 (1961), and Budget Rent-A-Car Corp. v. Fein , 342 F.2d 509 (5th Cir. 1965) ). Applying these principles to the case at hand,......
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