Opinion
35985.
DECIDED FEBRUARY 7, 1956. REHEARING DENIED FEBRUARY 29, 1956.
Action for damages. Before Judge Lilly. Thomas Superior Court. October 8, 1955.
Cain Smith, for plaintiff in error.
C. E. Haye, A. J. Whitehurst, contra.
Where, as here, the petition in an action for damages set out a cause of action against the defendant for negligence under a statement of facts showing a duty on the part of the defendant to exercise ordinary care to avoid injuring the plaintiff, and a violation of that duty, the trial court did not err in overruling the general demurrers to the petition on the ground that the plaintiff had characterized the acts of the defendant as gross negligence but had failed to allege facts sufficient to constitute gross negligence. A different situation is presented when the facts alleged in the petition place on the defendant only the duty to exercise slight care.
DECIDED FEBRUARY 7, 1956 — REHEARING DENIED FEBRUARY 29, 1956.
Lamar M. Boyette filed a suit for damages against Merlin H. Holland. We shall curtail the resume of the pleadings and demurrers as much as possible. The petition alleges in paragraph 3 that the defendant is a practicing lawyer. In connection therewith he is engaged in preparing income tax returns. Paragraph 4 alleges that on February 8, 1955, the plaintiff employed the defendant to prepare income tax returns for the year 1954. Owing to the late hour the defendant would have to miss going home to supper in order to prepare the income tax returns that day. It was agreed between the parties that if the defendant would prepare the tax returns instead of going home to supper that the plaintiff would take the defendant to some dining place and provide supper for both of them. The defendant was given the option of going to supper in his own car or in the plaintiff's truck. Paragraph 5 alleges that in line with that one entire agreement the tax returns were completed and the plaintiff and the defendant started out West Jackson Street in the defendant's car, to find a suitable dining place and to complete the said business agreement by having supper together. West Jackson Street is a part of the highway from Thomasville, Georgia, to Tallahassee, Florida. Paragraph 6 alleges that about one mile from the business center of Thomasville, West Jackson Street is crossed by the tracks of the Atlantic Coast Line Railroad Company; near the crossing there was a sawmill and crate and basket factory at which slabs and trash and other debris were burned, frequently causing dense smoke to settle upon or pass low over the said street and railroad crossing, greatly obstructing the view of motorists and others driving along part of West Jackson Street. Paragraph 7 alleges that on the date involved here the smoke and fog upon and adjacent to said street and railroad crossing was so dense that it obscured the vision of a driver of an automobile across the railroad crossing so that one could scarcely see another vehicle ten feet ahead. Paragraph 8 alleges that as the defendant approached the railroad crossing and while he was passing through said dense smoke and fog he was driving his automobile at a speed of at least 35 miles per hour. Paragraph 9 alleges that as he was about to pass over said railroad tracks he discovered that there was a slow moving truck immediately in front of him, not over ten feet away, moving in the same direction as the defendant was driving, which was westerly. The defendant was about to collide with the rear end of the truck. Paragraph 10 alleges that when the defendant discovered himself in such a dangerous situation he swerved his said automobile quickly and sharply to the left, without any warning to the plaintiff, doing so to avoid running into the rear end of the truck. Paragraph 11 alleges that such sudden and unexpected swerving of the defendant's car to the left at the speed at which he was driving threw the plaintiff violently against the right-hand defective door of the automobile. The door came open so that the plaintiff was thrown violently through the open door and upon the iron rails of said railroad tracks, thus causing the injuries and damages herein referred to. Paragraph 12 alleges that the defect in the right-hand door was latent and wholly unknown to the plaintiff, but was well known to the defendant who had failed to give the plaintiff any warning about the defect. The defect was such that when the door was closed and apparently securely fastened it was often not securely fastened so that when a passenger's body was thrown violently against the door (as was the plaintiff's) the door came open. Paragraph 13 alleges that the said defective door had existed for at least three weeks with the automobile in constant use by the defendant. Said defect was the result of improper repair of the automobile after a previous wreck.
At this point 9 paragraphs of the petition go to injuries allegedly received by the plaintiff and expenses incurred. Paragraph 24 alleges that the direct and proximate cause of all of the plaintiff's said injuries was the defendant's gross negligence in the following particulars, to wit: "(1) Driving his said automobile at a speed of 35 miles per hour through smoke and fog which reduced his visibility ahead to a distance of 10 feet or less. (2) His failure to warn plaintiff of the defective condition of the right-hand door to his said car, or to himself see that said door was securely fastened, knowing full well that any quick turn by him to the left would throw plaintiff violently against said door, knock it open, and throw plaintiff's body violently through the open door and upon the hard pavement and the iron rails of a railroad track over which they were then and there traveling. (3) Turning his automobile to the left, quickly, sharply and without warning, the instant he discovered his self-induced peril by reason of the slow-moving truck directly in front of him, seen by him for the first time when he was within ten feet of it and while he was driving his car at the speed of 35 miles per hour."
Subsequently the plaintiff denied any fault in the premises and filed additional acts of negligence on the part of the defendant as follows: "(a) Wilfully operating his automobile at an unreasonable and unsafe speed, approximately 35 miles per hour, in a dense fog where his clear visibility ahead was limited to a few feet only, approximately 10 feet ahead. (b) In not having his said automobile under such control as to bring it to a complete stop or make a safe turn in order to pass any other vehicle he might then and there overtake upon said highway. (c) In not keeping a proper lookout ahead so as to see any other vehicle that might then and there be upon said highway in time to avoid colliding with it, without making such a quick and sudden turn to the left as to throw plaintiff against the right-hand door of his machine. (d) His failure to stop at said railroad crossing, or even reduce his speed so as to have his automobile under control while crossing it and approaching the invisible truck immediately ahead of him and obscured by the fog. (e) In driving his said automobile without due regard for the safety of the plaintiff."
The renewed demurrers read: "Defendant demurs to said petition as a whole: (a) Because no cause of action is set out against the defendant, and, (b) Because the facts set forth in the petition failed to show that the defendant was guilty of gross negligence so as to make the defendant liable to the plaintiff in any sum." These demurrers were overruled. The defendant assigns error here on the overruling of the demurrers.
It will be discerned from the allegations of the petition that the plaintiff and the defendant were engaged, on the date of the event in question, in a joint benefit enterprise. They made the contract together and continued the enterprise of working on the income tax returns until time for each of them to go to supper. The going to supper was as much for the benefit of the plaintiff as any part of the work involved. It was equally beneficial to each of them. Our opinion of the liability of the defendant is that it is to be measured by ordinary negligence of the defendant and to be measured by the duty on the part of the plaintiff to exercise care for his own protection, under all the facts and circumstances involved in the case under consideration. Such matters and circumstances as are depicted in this petition are to be submitted to a jury, under proper instructions of the court as to the rules of ordinary negligence as applied to all the facts and circumstances developed in a trial before a jury. It is well settled law that in the absence of demurrer directed specifically to this point, where a cause of action is set out which would entitle the plaintiff to recover on proof of ordinary negligence on the part of the defendant, the mere fact that the plaintiff characterizes the acts of negligence set out as being gross will not defeat recovery, where ordinary negligence is proved. Blanchard v. Ogletree, 41 Ga. App. 4, 10 ( 152 S.E. 116); Fountain v. Tidwell, 92 Ga. App. 199 ( 88 S.E.2d 486). Accordingly, the trial court did not err in overruling a general demurrer to the petition to the effect that the facts alleged fail to show the defendant guilty of gross negligence so as to make the defendant liable in any sum.
The trial court did not err in overruling the demurrers to the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.