Opinion
35842.
DECIDED SEPTEMBER 30, 1955. REHEARING DENIED OCTOBER 13, 1955.
Damages. Before Judge Humphrey. Emanuel Superior Court. June 18, 1955.
Homer S. Durden, Jr., for plaintiff in error.
Price, Spivey Carlton, contra.
1. The plaintiff, under the circumstances of this case, was entitled to recover so far as the general grounds are concerned.
2. None of the special grounds is meritorious for the reasons set out in the body of the opinion.
DECIDED SEPTEMBER 30, 1955 — REHEARING DENIED OCTOBER 13, 1955.
Mrs. Mary Proctor (hereinafter called the plaintiff) instituted suit against David Bell (hereinafter called the defendant). The plaintiff alleged substantially: that on the night of February 12, 1954, she was riding as an invited guest with the defendant and received personal injuries resulting from the upset or overturning of the defendant's car. James R. Proctor was driving the car at the time of the occurrence, with the consent, direction, and assistance of the defendant, and on the business of the defendant and under his command. It is alleged that the defendant and his driver Proctor were negligent in the operation of the car at a speed in excess of 55 miles per hour; in failing to keep a proper lookout ahead to observe a curve in the highway where the car was upset; by not having the car under control so as to be able to stop in the event of an emergency; for operating the car while under the influence of intoxicating liquors. It is further alleged that when the car overturned the plaintiff's left leg was fractured in two places and she suffered damages for medical expenses in the sum of $1,062.45. The defendant filed his plea and answer in which he admitted that the car overturned and the plaintiff suffered a broken leg. The defendant denied that the overturning of the car was due to any negligence on his part or on the part of James R. Proctor (who was, and is the husband of the plaintiff); that the driver was not employed by the defendant at the time of the upset; that this trip was made at the special instance and request of James R. Proctor so that Proctor could see his wife and children, who were visiting in Augusta, Georgia; that when the defendant and Proctor started to leave Augusta to return to Swainsboro the plaintiff and her two children came back with them; that the defendant had known Proctor for ten years and that Proctor earns his living driving trucks and passenger buses and that he has the reputation of being a diligent and careful driver and, to the knowledge of the defendant, Proctor had never had an accident; that prior to the upset Proctor drove the car in a safe and careful manner and the plaintiff never complained to the defendant regarding the manner in which the car was being driven; that at the time of the upset the defendant was asleep and did not know what caused the car to overturn; that after the upset Proctor told the defendant that the lights of an oncoming car blinded him and that in order to avoid a head-on collision he drove the car off the pavement onto the right shoulder of the road and that as a result he lost control of the car.
The case proceeded to trial and the jury returned a verdict in favor of the plaintiff. The defendant filed his motion for a new trial on the statutory grounds and thereafter amended by adding four special grounds. The court overruled this motion. The defendant assigns error here on that judgment.
The plaintiff testified that she had been visiting her sister, Mrs. Nina Holden, in Augusta, Georgia, that neither she nor her husband owned a car and that prior to going to Augusta she left word for her stepbrother, David Bell, the defendant here, to come to Augusta in his car and bring her and her two children back to her home in Swainsboro; that her husband worked for M. N. Hogan in Dublin, Georgia as a truck driver; that the defendant boarded in her home and that her occupation was that of a housewife; that at approximately 7:30 on the night the accident occurred she, her husband, her two children, and the defendant left her sister's home to return to Swainsboro; that the defendant had come for her in his car at her request; that at the time they left her sister's house the defendant was driving his car and on the outskirts of Augusta he parked the car in front of a liquor store, went inside the store and returned with a package, the contents of which were not known to her; that after returning to the car he drove a short distance to a filling station, at which her brother-in-law was employed; that the defendant and witness's husband, James Proctor, got out of the car and went inside the filling station, where they remained for some ten minutes; that she remained in the car and when the men returned to the car she smelled the odor of liquor on each of them, she smelled this liquor on both men before they drove away from the filling station; that she made no complaint to either man about their having had a drink; that she made no effort to get out of the car, nor to have her brother-in-law, with whom she had been visiting, to carry her back to his home; that after driving a few miles the defendant stopped the car and asked her husband to start driving; that while the car was stopped both men got out and went behind the car, but she did not see them drink any liquor while the car was parked; that after her husband started driving, the defendant went to sleep; that she was sitting on the front seat between the defendant and her husband and all during the time that her husband was driving the car she made no complaint to the defendant as to the manner in which the car was being driven; that when the car went through Waynesboro she made no effort to get out of the car; that she is 24 years of age and has never learned to drive; that the dash light was not burning and that she could not see the speedometer needle and the only way that she could tell the car was being driven over 65 miles an hour was by the motion and noise of the automobile; that she would not swear that they did not meet an oncoming car on the curve at the time of the accident; that there could have been such an oncoming car, which could have blinded her husband, but she did not see it despite the fact that she was looking ahead and observing the road at the time of the accident. She told the doctors she would take care of her medical expenses; that her sole duties were those of a housewife; that she has no income or property of her own; that she is entirely dependent on her husband and she has no income or money with which to pay for the medical expenses.
The deposition of Dr. W. S. Flanagin shows that he performed a skin graft on the plaintiff's leg, for which he claims a bill of $175.
The deposition of Dr. Augustin S. Carswell shows that he treated the plaintiff for a compound fracture of her leg, for which he claims a bill of $350 which has not been paid. The hospital bill of the University of Georgia Hospital in the amount of $512.45 was introduced in evidence.
Benny Cowart, night policeman with the Waynesboro City Police Department, testified that he investigated this wreck, together with the Sheriff of Burke County, Georgia; that he arrived at the scene of the accident before the injured persons had been carried to the hospital, that a broken pint liquor bottle was found beside the car and from the odor of liquor he presumed that this bottle had been broken at the time of the accident; that James Proctor and the defendant were drunk; that he based this statement on the fact of liquor fumes on their breath, their manner of talking and walking; that their speaking and walking ability could not have been impaired by blows on the head sustained in the wreck; that both men were cut about the head and face.
Raymond C. Holden testified that he worked at a filling station 3 miles south of Augusta; that on February 12, 1954, the defendant, James Proctor, the plaintiff and their two children drove up to the filling station where he worked; that the plaintiff is his sister-in-law; that the defendant asked him if he could take a drink in the station; that he saw the defendant take a drink and hand the bottle to James Proctor; that he went outside to wait on a customer and did not see Proctor take a drink; that after the accident he saw both men and they were under the influence of liquor.
The defendant testified that the plaintiff is his stepsister; that he boards in her house; that his sole occupation is that of a truck driver for C. M. Jones, and James Proctor earns his living as a truck driver for M. N. Hogan; that on the day the accident occurred he left Swainsboro at 5 a. m. to carry a load of grain to Fort Valley, Georgia, for his employer, returning to Swainsboro at 4 p. m.; that he was informed that his stepsister wanted him to come to Augusta in his car to return her and her two children to Swainsboro; that he was tired and fatigued from the trip to Fort Valley and agreed to go to Augusta only after James Proctor promised to help with the driving; that James Proctor had earned his living as a driver of trucks and passenger buses for approximately ten years; that James Proctor had a reputation of being a good, diligent and careful driver and to defendant's knowledge had never had an accident while driving; that when he, the plaintiff, James Proctor and their two children left Mrs. Nina Holden's home in Augusta he was driving his own car; that on the outskirts of Augusta he parked the car in front of a liquor store and went into the store and purchased a pint of liquor; that upon his return to the automobile he drove to a filling station where the plaintiff's brother-in-law was employed; that he and Proctor went into the filling station and bought a Coca-Cola and opened the bottle of liquor; that each of them took a drink and after a few minutes they returned to the automobile and he drove down the highway some 10 miles where he stopped the car and asked James Proctor to drive; that the reason he asked Proctor to drive was due to his fatigue and the fact that he was feeling the effect of the liquor he had drunk; that he and Proctor got out of the car and each of them took another drink, using as a chaser a bottle of Coca-Cola which he had bought at the filling station; that while he was driving the plaintiff sat on the front seat between him and her husband and he did not know if she had seen the Coca-Cola he was holding between his legs while driving; that at the time he turned the car over to James Proctor to drive, the said Proctor was not drunk, nor was he showing any effects of the liquor he had consumed; that after James Proctor started driving, the plaintiff continued to sit in the front seat between Proctor and himself; that Proctor was operating the car in a safe manner and after a few minutes witness went to sleep; that when the car went through Waynesboro he was aroused by the street lights, but went back to sleep immediately and was asleep at the time of the accident; that the plaintiff did not complain to him, nor to her husband about the manner in which the car was being driven by either of the men; that had she made any complaint he would have certainly corrected and called down Proctor had he been driving in any manner which was negligent or dangerous; that in the wreck he sustained a severe blow on his head and does not remember anything from the time of the accident on Friday night until approximately 4 p. m. the next day; that he does not remember talking to Mr. Cowart of the Waynesboro City Police Department and has no recollection of ever having seen him until the trial of the case.
James Proctor, husband of the plaintiff, was called as a witness and stated that the defendant drove the car from Swainsboro to Augusta and part of the way back to Swainsboro: that he started driving the car at the request of the defendant; that he did not meet an oncoming car at the place of the accident and was not blinded by another car's headlights; that at the request of the defendant the jury was retired and the court was asked to direct a verdict in favor of the defendant, insofar as hospital and medical bills were concerned, because the plaintiff had failed to allege and prove that the hospital and doctor bills had been extended on her personal credit and that by express agreement between her and the persons furnishing such services that she would be individually liable for the same, and that her husband would be relieved of all liability therefor. The court overruled this motion.
The above statement of the evidence does not purport to include all of the evidence but such as is not referred to above and which we deem necessary in order to determine the issues will be dealt with during the course of the opinion. We might add, in this connection, that the defendant testified substantially that he was going to Augusta anyway and the bringing back of the plaintiff and her children was merely incidental thereto.
Regarding the special damages for medical expenses, it is elementary that the husband is responsible, generally, under the law, for such items of medical expenses as are shown in the instant case. This rule is not applicable where such expenses are charged to the wife at her request, and she promises to pay such expenses herself instead of her husband paying them. The evidence revealed that the plaintiff made an agreement with the hospital and with the doctors that she would pay the expenses and that such expenses should be charged to her. The expenses were charged to the plaintiff personally. The bills were sent to her by the hospital and the doctors. See Herring v. Holden, 88 Ga. App. 212 ( 76 S.E.2d 515).
Further, regarding the general grounds, it is contended by the defendant that the plaintiff was guilty, under the evidence, of contributory negligence in that she had an opportunity to leave the car after she realized that the defendant and James R. Proctor were so intoxicated as to make it unsafe for the plaintiff and her children to continue to ride in the car. It is true that under our law if a guest in a car is so heedless of her own safety that she fails to exercise ordinary care, such would prevent a recovery for injuries. Under the facts of the present case it is easily seen that there were striking differences existing between the circumstances of this case and the facts in the numerous cases cited on behalf of the defendant. One of the cases cited by the defendant is Brown v. Binns, 87 Ga. App. 485 ( 74 S.E.2d 370). In that case the accused saw the driver of the car drink one-half pint of whisky prior to getting into the car and leaving in the car on the trip; that the driver stopped again, got out of the car and procured a pint of whisky, after which more drinking took place and the guest participated in the drinking and persisted in getting into the car with such knowledge of the driver's condition. Under such circumstances it was held that the guest assumed the risk involved and could not recover. That case and all other cases relied upon by the defendant are distinguishable from the facts and circumstances in the instant case. In the instant case we have a young mother with two small children; one a baby in her arms and the other child approximately two and one-half years of age. She entered the car in Augusta to return home with the defendant, along with the plaintiff's husband. At the time they left Augusta there had been no evidence of drinking by either of the men. The plaintiff's home was in Swainsboro, Georgia. They left Augusta at night. On the way to Swainsboro the defendant stopped the car at a liquor store, went in, came back to the car and got in the car. There still had been no drinking or evidence of drinking. The party proceeded towards Swainsboro. A short time later they stopped at a filling station, went in while the plaintiff remained in the car, and after the men returned to the car the plaintiff smelled liquor on the breath of both of the men. The defendant began to drive erratically and the plaintiff complained to him about it and asked him to slow down. The defendant then stopped the car and asked the plaintiff's husband to drive the car. The plaintiff remained in the car with her baby and little boy. Her husband then began to drive. The plaintiff noted that her husband was driving too fast for safety and complained to him about it, calling his attention to the children and stating that she did not want them to be hurt. The husband failed to heed her pleas and continued to drive too fast. Then it was that the husband failed to make a curve, at high speed, and wrecked the car, which resulted in the injuries to the plaintiff. At this time the defendant was asleep. It is revealed by the evidence that at no time after the plaintiff knew or could have known that the two men were drinking did the plaintiff have an opportunity to get out of the car, handicapped as she was by having to take care of her two children. The plaintiff did everything which she could reasonably have been expected to do, under the circumstances, to prevent the injuries. According to her repeated testimony she begged both men to slow down, to drive carefully, but the men continued to drive recklessly and carelessly. We think it would have been the height of folly for her to have leaped from the car with a small baby in her arms, with the car going at high speed. At any rate, this was a question for the jury to determine. See Evans v. Caldwell, 45 Ga. App. 193 ( 163 S.E. 920), and Stephenson v. Whiten, 91 Ga. App. 110 ( 85 S.E.2d 165). It must be kept in mind that the evidence reveals that, had the plaintiff left the car at night on a public highway, she would have submitted herself and her children to greater danger than she would have been in had she remained in the car. The law does not require her, under such circumstances as revealed in the instant case, to do so, and the jury so found. The assignments of error on the statutory grounds show no reversible error.
Special ground 1 assigns error on the excerpt from the charge of the court as follows: "In determining where the preponderance of the evidence lies the jury may consider all the facts and circumstances of the case, the witness' manner of testifying, their means and opportunities for knowing the facts to which they testify, the probability or improbability of their testimony, and also their personal credibility in so far as the same may legitimately appear from the trial. The jury may also consider the number of witnesses, though the preponderance is not necessarily with the greater number." Code § 38-107 sets out the rules for determination as to where the preponderance of evidence lies. This court held in Georgia Power Co. v. Burger, 63 Ga. App. 784 (1) ( 11 S.E.2d 834) as follows: "In charging the jury the provisions of the Code, § 38-107, the better practice is to charge the section in its entirety. The omission, whether through inadvertence or not, to charge some of the provisions therein contained, may or may not be error, dependent on the issues of the particular case under consideration. In the present case, the failure of the court to charge `their interest or want of interest' while giving in charge such section, does not require a reversal. The weight of the evidence being considered was not clearly dependent on that being given by parties at interest, and there being no request to charge, its omission was not error." This case was cited approvingly by the Supreme Court in Binson v. C S National Bank, 208 Ga. 813 (5) ( 69 S.E.2d 866). There is nothing in this record which requires a reversal of the instant case because the court failed to include in its charge "interest or want of interest."
Special ground 2 assigns error on the following excerpt: "And, if in this case, gentlemen, you find the injury occurred because of the gross negligence of the defendant or his servant, one he has placed in control of the car, should he have placed anyone in control of the car; was slightly negligent in the exercise of slight negligence, brought about the injury to the plaintiff in this case, I charge you that she would be entitled to recover whatever the jury finds that has been proven damages." We consider this a mere slip of the tongue of the trial court. A reading of the whole charge shows that there was no error actually harmful to the defendant when we consider the whole charge. The charge of the court of which a portion is set out in this special ground began with the following paragraph: "Gentlemen, if you find the plaintiff was a guest in the car of the defendant I charge you that the defendant would be liable only for gross negligence. Gross negligence, in general, slight diligence is that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. . . The absence of such care is termed gross negligence, the defendant would be liable only for acts of gross negligence." It will thus be seen that the court had stated twice, in the paragraph quoted immediately hereinabove, that the defendant was liable only for gross negligence. At the conclusion of the charge the court said: "It has been called to my attention there may be some misunderstanding on the idea of gross negligence or slight diligence. One is the opposite from the other. If a person has been grossly negligent he hasn't used slight diligence. I think that is clear to the jury." Under the whole charge of the court the jury could not have been misled and they could not have reasonably interpreted the charge to mean anything other than that the defendant would be liable only for gross negligence. In Siegel v. State, 206 Ga. 252 (2) ( 56 S.E.2d 512) the Supreme Court said: "A mere verbal inaccuracy in a charge, which results from a palpable `slip of the tongue', and clearly could not have misled or confused the jury, is not cause for a new trial."
Special ground 3 alleges that the court erred in giving the jury the following instructions pertaining to the diligence required of the plaintiff: "Now, gentlemen, the plaintiff has to exercise ordinary care to prevent injury to herself. In other words if the plaintiff was in the exercise of gross negligence, but by the exercise of ordinary care and diligence the plaintiff could have prevented injury to herself, she could not recover." The defendant contends that the above excerpt is reversible error because the court used the word "plaintiff" in a portion of this excerpt when he should have used the word "defendant." It is apparent that the court did use the word "plaintiff" in one place in the excerpt when he should have used the word "defendant." This is definitely a "slip of the tongue." Such does not require a reversal. This court has passed on the identical question in Walton v. Smith, 43 Ga. App. 308 ( 158 S.E. 641) in the following language: "As to the first of these assignments, it seems to be evident that, due to a lapsus linguae, the trial judge, in one portion of his charge, used the term `plaintiff' instead of `defendant', and vice versa. Such an inadvertence is not uncommon, and in the present instance, when considered in connection with the preceding language of the charge, ought not to, and doubtless did not, confuse the jury, and was not harmful and prejudicial, and did not preclude any finding in favor of the defendant, as alleged in the exception. Justice would not be promoted, but, on the contrary, might well be defeated, if the court were to set aside the verdict upon any ground of such a technical nature as that occurring here. We hold that the exception is without merit." See also Hill v. George, 47 Ga. App. 272, 273 (5) ( 170 S.E. 326), and Atlas Auto Finance Co. v. Atkins, 79 Ga. App. 91, 97 ( 53 S.E.2d 171).
Special ground 4 assigns error on the following excerpt from the charge of the court: "It is a violation of the law of Georgia for anyone to operate a motor vehicle upon a public highway or street while under the influence of alcoholic beverages. Should the jury find under the evidence that the defendant or driver of the car operated the car while under the influence of intoxicating beverages it would still be a matter for the jury to determine whether or not such operation was the proximate cause of the accident that resulted in injury to the plaintiff in the case, if any injury did result from the accident." It is not contended that this is not a correct principle of law, but it is contended that the court should have gone further in connection with this part of the charge, and instructed the jury that driving a car under the influence of intoxicating liquors is gross negligence and that such operation is the proximate cause of the injuries. We are satisfied that hereinabove in this opinion we have explained that, when we view the charge as a whole, the court clearly and fully instructed the jury that the plaintiff could not recover unless the defendant was guilty of gross negligence which resulted in or was the proximate cause of the injuries to the plaintiff. This assignment of error is without merit.
The court did not err in denying the amended motion for a new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.