Opinion
35547.
DECIDED MAY 31, 1955. REHEARING DENIED JUNE 15, 1955.
Damages. Before Judge Baldwin. Macon City Court. November 3, 1954.
J. Millard Jackson, S. Gus Jones, Neal D. McKenney, for plaintiff in error.
John D. Comer, Harris, Russell, Weaver Watkins, Bell Bell, contra.
1. Special grounds 1 and 3 are not considered for the reasons given in the opinion.
2. Special ground 2 is abandoned.
3. Special ground 4 is without merit.
4. Where an original petition is based on one degree of negligence, but the petition is amended by allegations of fact which shift the degree of negligence, the court is required to charge that degree of negligence only which is set forth by the petition as amended, and this in the instant case is ordinary negligence and not gross negligence.
5. Where a share-the-expense ride in a motor vehicle is prearranged by a legally enforceable agreement, such a situation makes the passenger a passenger for hire and not a guest, and requires ordinary care on the part of the operator of the motor vehicle.
DECIDED MAY 31, 1955 — REHEARING DENIED JUNE 15, 1955.
R. C. Fountain (hereinafter called the plaintiff) brought a suit for damages to recover $25,000 for personal injuries alleged to have been caused by the gross negligence of James B. Tharpe and H. A. Tidwell. The plaintiff amended the original petition by adding the following: "1. The circumstances under which petitioner was in defendant's [Tidwell's] automobile were that both of them are employees at Warner Robins Air Force Base some forty miles from where they both live and petitioner and defendant entered into a plan whereby they would share the expenses of the gas and oil and upkeep of the car on the trips, with petitioner contributing $1 toward the expense of the round trip each day he rode with the defendant, and under the foregoing circumstances he was a guest of defendant in his automobile.
"2. The collision occurred at approximately the center of the road, and both vehicles were over the center line to their left when the collision occurred and petitioner shows that the verbal warning referred to in the petition was given by Melvin W. Wood, another occupant in the vehicle, the words used being `look out' — this while the defendant was several hundred feet from the vehicle with which he collided."
The circumstances under which the plaintiff was in the defendant's automobile were that both of them are employees at Warner Robins Air Force Base, some forty miles from where they both live, and the plaintiff and defendant entered into a plan whereby they would share the expenses of the gas and oil and upkeep of the car on the trips, with petitioner contributing $1 toward the expense of the round trip each day he rode with the defendant, and under the foregoing circumstances he was a guest of defendant in his automobile. The case was tried upon the theory of the alleged breach by the defendants of the duty to exercise slight care to avoid injury to the plaintiff. The jury returned a verdict in the sum of $5,000 against the defendant Tharpe and in favor of the defendant Tidwell. The plaintiff filed a motion for a new trial on the general grounds, and, by amendment, on five special grounds. The trial court denied the motion, and error is assigned on that ruling.
The evidence showed partly that the Tidwell car contained, in addition to the driver H. A. Tidwell, Robert C. Fountain (the plaintiff), Lewis H. Watkins, Melvin W. Wood, and Ed K. Tidwell, all of whom testified at the trial. The testimony of the witnesses who were in the Tidwell car was without major contradiction, and showed that the Tidwell car was traveling south toward Warner Robins at approximately 6 a. m. at a speed estimated by witnesses in the Tidwell car at from 40 to 50 miles per hour. The Tidwell car was going around a curve in the road to its right, a curve measured by an engineer to be a two-degree curve and characterized by him as a gradual curve; no cars traveling in the same direction were in front of or immediately behind the Tidwell car, and the weather was clear, bright and sunny; the station wagon of the defendant Tharpe was traveling north at a speed variously estimated at 35 to 55 miles per hour; when the driver Tidwell first saw the station wagon coming toward him in the opposite direction, the Tidwell car was on its right side of the road, and so was the station wagon which was about 300 yards away; when the vehicles were about 100 or 150 yards apart, the station wagon began, for no apparent reason, to come over to Tidwell's side of the road; as it did this, Wood hollered, "Look out!" and Tidwell said that he was going to hold his side of the road; the station wagon continued to come onto Tidwell's side of the road and all four wheels of the station wagon came onto Tidwell's side; when the station wagon driven by the defendant Tharpe was first completely on Tidwell's side, the vehicles were about 75 or 100 yards apart. The testimony showed also that Tidwell immediately blew his horn when the Tharpe station wagon began coming onto the wrong side of the road, and that the horn was repeatedly and continuously blown. Aside from the horn blowing, there was some conflict as to what action was taken by Tidwell. Watkins testified that Tidwell immediately pulled the car off the paved portion and onto the right shoulder. Ed K. Tidwell testified that the station wagon also seemed to be headed for the ditch on the right. Tidwell himself testified that he remained on the pavement, on his right side, and that he put on brakes, thereby reducing his speed to 15 or 20 miles per hour when the impact occurred. The plaintiff himself testified that the brakes were put on to some extent. Wood thought that Tidwell reduced his speed only slightly.
The testimony showed further that when the two vehicles were very close to each other, 25 feet or less apart, Tidwell jerked his car to the left; that the left front of Tidwell's car was slightly across the center line when the cars hit, and the right front of Tharpe's car was on his own side at the moment of impact. Tidwell did not recall cutting to the left immediately prior to the impact, but he thought that Tharpe cut back to his right when the vehicles were within 6 or 8 feet of each other. Tidwell testified that the shoulder of the road to his right was sandy with weeds at least waist high; that there was a ditch 12 or 14 inches wide, and beyond the ditch there was an embankment about 8 or 9 feet high. There was other testimony that the shoulder was reasonably level.
The occupants of the Tidwell car were unable to explain why Tharpe drove his station wagon onto the wrong side of the road. Tidwell thought Tharpe had dropped off to sleep or was perhaps drunk. Immediately after the accident, Ed K. Tidwell asked Tharpe what he was doing on the wrong side of the road, and Tharpe never did say. Tharpe later told the investigating officer that he did not know whether he had gone to sleep or what. The testimony of the defendant Tharpe differed from that of all the other eyewitnesses in almost every important detail. He testified that he was on his side of the road as he reached the point of collision, and that he was struck by the Tidwell car as it was pulling out to pass another vehicle. Tharpe testified that he was going about 30 or 35 miles per hour and was just about on the center line. However, he never did cross over the center line according to his testimony. If there is any other material evidence necessary to be mentioned, we will mention it hereinafter.
1. Special ground 1 complains of errors in the charge of the court regarding gross negligence. Since gross negligence is not involved in this case, it would be useless for us to consider whether or not there is error in this special ground.
2. Special ground 2 is abandoned. Special ground 3 also excepts to an excerpt from the charge regarding gross negligence on the part of the driver of the car in question. We think, as we stated in regard to special ground 1, that it is not necessary to consider any charge as to gross negligence. This special ground is without merit.
3. Special ground 4 complains of the following excerpt from the charge; "Should you find that James B. Tharpe was negligent, but that such negligence was not the proximate cause of the collision and was not a contributing cause, which, together with the negligence of H. A. Tidwell, if he was negligent, did not join to concurrently and proximately cause the collision, you could not find against the defendant, James B. Tharpe." There is no reversible error in this ground.
4. Special ground 5 complains that the court erred in charging as follows: "Now, I charge you that the plaintiff was a guest in the automobile of the defendant, H. A. Tidwell, at the time of the injury sued for, and that under the laws of this State the plaintiff cannot recover from the defendant Tidwell unless you find that the defendant Tidwell was grossly negligent, and that his gross negligence was a proximate cause of the injury sued for."
In the original petition the plaintiff alleged that he was an "occupant" of the defendant Tidwell's automobile, and that the acts alleged to be negligence on the part of the driver Tidwell were acts of gross negligence. Thereafter, without objection, the following was added by amendment: "The circumstances under which petitioner was in defendant's automobile were that both of them are employees at Warner Robins Air Force Base, some 40 miles from where they live and petitioner and defendant entered into a plan whereby they would share the expenses of the gas and oil and upkeep of the car on the trips, with petitioner contributing $1 toward the expense of the round trip each day he rode with the defendant, and under the foregoing circumstances he was a guest of defendant in his automobile." The allegations as to gross negligence remained unchanged. However, "Although the negligence with which a defendant is charged may be characterized in the plaintiff's petition as wilful and wanton, if the specific facts alleged do not warrant such conclusion the rule of duty which merely requires the exercise of ordinary care and diligence is not affected thereby; nor does it in such a case become incumbent upon the plaintiff, by reason of such allegation, to prove more than is required by law to entitle him to recover. The legal conclusions of the court are to be drawn from the statements of fact contained in the pleading, unaffected by the conclusions of the pleader." Western Union Telegraph Co. v. Harris, 6 Ga. App. 260 (2) ( 64 S.E. 1123). Accordingly, if the plaintiff here is entitled to recovery by proof of lack of only ordinary care on the part of the defendant, the fact that he alleged such acts of negligence as he relies upon for recovery to be "gross negligence" will not prevent his recovery should they prove to be acts of ordinary negligence and not gross negligence. See also Standard Oil Co. v. Parrish, 40 Ga. App. 814 (3) ( 151 S.E. 541).
The allegations of the original petition set out a cause of action by one who, so far as appeared, was riding in the host's automobile as a gratuitous guest, and accordingly proof of gross negligence was essential to a recovery. By amendment the petition added facts showing that the passenger was not a gratuitous guest; that he paid $1 a day for the privilege of riding in the defendant's car; and that accordingly the arrangement was one for the mutual benefit of both parties. Under such circumstances the greater duty of ordinary care was owing by the defendant to the plaintiff. Doss v. Miller, 87 Ga. App. 230 (2) ( 73 S.E.2d 349); Atlantic Co. v. Taylor, 80 Ga. App. 25 ( 54 S.E.2d 910). Upon the trial of the case these allegations were supported by proper proof.
Blanchard v. Ogletree, 41 Ga. App. 4 ( 152 S.E. 116) represents a parallel situation. There the plaintiff alleged that the decedent was an invited guest in the defendant's car, and alleged the acts of negligence enumerated to be acts of gross negligence. By amendment, and without objection, additional facts were set up which so changed the relationship of the parties that, if the jury accepted the latter theory of the case, a recovery would have been authorized for ordinary negligence only. As stated at page 9, "while the jury might not have believed that the acts of the defendant in his manner of driving the car constituted gross negligence, they might well have believed that the acts of the defendant did amount to ordinary neglect, and that the circumstances were such as to impose upon the defendant the duty of exercising that degree of diligence. Under the charge of the court given the plaintiff was deprived of any right to recover except for gross negligence, and for the reasons set forth in the original syllabus, we think the court should have instructed the jury that if it was found from the evidence that the decedent had ceased to be the voluntary and gratuitous guest of the defendant, the duty would thereafter devolve upon him to exercise ordinary care for her safety."
Counsel for the defendant in error relies on Code § 38-402, Peacock v. Terry, 9 Ga. 137, and Carver v. Carver, 199 Ga. 352 ( 34 S.E.2d 509), to support his contention that either party may avail himself of allegations or admissions made in the pleadings of the other without offering evidence in support thereof; and on Thomas v. Lomax, 82 Ga. App. 592 ( 61 S.E.2d 790), Carter v. Carter, 80 Ga. App. 172 ( 55 S.E.2d 721), and Forrester v. Frizzell, 35 Ga. App. 562 ( 134 S.E. 182), to support his position that when a party has taken a certain position in a judicial proceeding and the case is tried on that theory, the plaintiff is bound by that position.
The rules of law therein enunciated are well recognized. They are, however, inapplicable here. The plaintiff's position as shown by his petition as amended is that he was a passenger in the car of the defendant under circumstances which obligated the defendant to exercise ordinary care towards him. The petition in this respect is supported by the evidence. Therefore, it became incumbent upon the trial judge to charge the law applicable to the case. The plaintiff here was entitled to recover on proof of ordinary negligence only. The fact that he alleged the acts of negligence committed to have been gross negligence did not preclude him from recovery on proof of the required legal degree of ordinary negligence. The court, therefore, on the authority of Blanchard v. Ogletree, supra, should have charged that the duty owing by the defendant to the plaintiff under these circumstances was the duty to exercise ordinary care, and it was reversible error to charge that the plaintiff could not recover "unless you find that the defendant Tidwell was grossly negligent." This error requires reversal.
5. We come next to consider what degree of negligence applies in a situation, as here, on a share-the-expense ride, and neither the Supreme Court nor the Court of Appeals has passed upon this question. This court approached the question in a case of similar facts, Doss v. Miller, 87 Ga. App. 230 ( 73 S.E.2d 349) but did not decide the question. In that case the facts turned upon a question of law different from that which now confronts us. In that case the controlling issue was regarding the family-purpose doctrine. Therefore, the law governing the facts in that case was ordinary care, the degree of care applicable to a situation with which we were dealing in that case. While the share-the-expense-ride doctrine has not been passed upon by the appellate courts of this State, it has been dealt with by many other jurisdictions. See, in this connection, cases holding that prearrangement to share expenses (such as gas and oil) makes the occupant a "passenger for hire" and not a guest: Potter v. Juarez, 189 Wn. 476 ( 66 P.2d 290); Teders v. Rothermel, 205 Minn. 470 ( 286 N.W. 353); Pence v. Berry, 13 Wn.2d 564 ( 125 P.2d 645); McMahon v. DeKraay, 70 S.D. 180 ( 16 N.W.2d 308); Kerstetter v. Elfman, 327 Pa. 17 ( 192 A. 663); Smith v. Clute, 277 N.Y. 407 ( 14 N.E.2d 455); Hasbrook v. Wingate, 152 Ohio St. 50 ( 87 N.E.2d 87); Fortuna v. Sangster, 296 N.Y. 923 ( 73 N.E.2d 40).
Cases holding the test to be whether or not the obligation to pay for transportation or part of expenses is one that can be enforced in a court of law: Kerstetter v. Elfman, supra; Smith v. Laflar, 137 Ore. 230 ( 2 P.2d 18); Hasbrook v. Wingate, supra; Hale v. Hale, 219 N.C. 191 ( 13 S.E.2d 221); Bushouse v. Brom, 297 Mich. 616 ( 298 N.W. 303); Coerver v. Haab, 23 Wn.2d 481 ( 161 P.2d 194).
Cases holding that the sharing of expenses (such as purchase of gas and oil) does not make a rider a "passenger for hire" instead of "guest": Rogers v. Vreeland, 16 Cal.App.2d 364 ( 60 P.2d 585); McCann v. Hoffman, 9 Cal.2d 279 ( 70 P.2d 909); Shephen v. Spaulding, 32 Cal.App.2d 326 ( 89 P.2d 683); Albert McGann Securities Company v. Coen, 114 Ind. App. 60 ( 48 N.E.2d 58); Scholz v. Leuer, 7 Wn.2d 76 ( 109 P.2d 294); Voelkl v. Latin, 58 Ohio App. 245 ( 16 N.E.2d 519); Duncan v. Hutchinson, 139 Ohio St. 185 ( 39 N.E.2d 140); Barnard v. Heather, 135 Neb. 513 ( 282 N.W. 534); McCornack v. Pickerell, 225 Iowa 1076 ( 283 N.W. 899); McDougald v. Couey, 150 Fla. 748 ( 9 So.2d 187); Chaplowe v. Powsner, 119 Conn. 188 ( 175 A. 470); Hale v. Hale, supra; Brody v. Harris, 308 Mich. 234 ( 13 N.W.2d 273); Carboneau v. Peterson, 1 Wn.2d 347 ( 95 P.2d 1043); Fuller v. Tucker, 4 Wn.2d 426 ( 103 P.2d 1086); Kuser v. Barengo (Nev.) 254 P.2d 447.
Therefore, we hold that the rule of law to be laid down for Georgia on the question before us is as follows: Where a share-the-expenses ride in a motor vehicle is prearranged by a legally enforceable agreement, such a situation makes the passenger a passenger for hire and not a guest, and requires ordinary care on the part of the operator of the motor vehicle.
Judgment reversed. Townsend and Carlisle, JJ., concur.