Opinion
44765, 44766.
ARGUED SEPTEMBER 9, 1969.
DECIDED FEBRUARY 4, 1970. REHEARING DENIED MARCH 26, 1970.
Action for damages. Richmond Superior Court. Before Judge Fleming.
Fulcher, Fulcher, Hagler, Harper Reed, J. Walker Harper. for appellant.
Harris, Chance McCracken, O. Torbitt Ivey, Jr., for appellee.
This is an appeal and a cross appeal from orders denying a summary judgment for both the plaintiff and the defendant. The trial judge certified that both orders should be subject to review. A passenger sued the owner-driver, alleging gross negligence, after the car hit a telephone pole. Both parties had been drinking beer over a period of several hours, but both denied intoxication. There being a genuine issue on the material facts as to negligence, including the related issues of assumption of risk, lack of ordinary care for one's own safety and comparative negligence, the trial court did not err in denying both motions for summary judgment. Stukes v. Trowell, 119 Ga. App. 651 ( 168 S.E.2d 616), certiorari denied 119 Ga. App. 890; Trussell v. Lawrence, 120 Ga. App. 39 ( 169 S.E.2d 611).
Judgment affirmed. Jordan, P. J., concurs. Whitman, J., concurs specially.
ARGUED SEPTEMBER 9, 1969 — DECIDED FEBRUARY 4, 1970 — REHEARING DENIED MARCH 26, 1970 — CERT. APPLIED FOR.
I concur specially in the opinion of affirmance in this case. While I regard as sound the view of the law on the question involved as set forth in the majority opinion case of Freeman v. Martin, 116 Ga. App. 237 ( 156 S.E.2d 511), in which I concurred and as set forth in the dissenting opinion in Stukes v. Trowell, 119 Ga. App. 651 ( 168 S.E.2d 616), in which I concurred, and also as set forth in the writer's opinion in Davis v. Ferrell, 118 Ga. App. 690 ( 165 S.E.2d 313), nevertheless, I now deem as binding and controlling the majority opinion in Stukes v. Trowell, supra, and the opinion in Trussell v. Lawrence, 120 Ga. App. 39 ( 169 S.E.2d 611), for the reason that petitions for writ of certiorari in these cases were denied by the Supreme Court of Georgia and in the petitions the authorities of both the Supreme Court and this Court on the question involved were fully presented and reviewed.