Summary
applying the approach followed in federal court
Summary of this case from Plains Commerce Bank v. Long Family Land & Cattle Co.Opinion
35562.
DECIDED MAY 18, 1955. REHEARING DENIED JUNE 1, 1955.
Damages. Before Judge Guess. DeKalb Superior Court. December 2, 1954.
Moise, Post Gardner, Walter P. McCurdy, for plaintiff in error.
Walter E. Baker, Jr., Carl T. Hudgins, contra.
1. ( a) An invitee in an automobile to whom the duty to exercise ordinary care is owing is one who is invited to ride in the car in order to confer a substantial benefit upon the owner or operator.
( b) A defendant who, having no obligation to care for the plaintiff, invites her into the automobile for the sole purpose of benefiting the latter, is legally liable for resulting injury to the plaintiff only when the defendant's acts amount to gross negligence.
( c) Where a petition alleges gross negligence in one count, and seeks to predicate recovery on simple negligence only in another count, and the charge authorizes a verdict on one or both counts, but the pleadings and evidence authorize a recovery for gross negligence only, a general verdict for the plaintiff is illegal and cannot stand.
2. The remaining special grounds of the amended motion for a new trial are not likely to recur on another trial.
DECIDED MAY 18, 1955 — REHEARING DENIED JUNE 1, 1955.
This action for damages was originally filed in one count, alleging that the plaintiff, Mrs. Nell Austin, was a guest in the automobile of her sister, Mrs. Jerry Taylor, the driver, and was injured as the result of certain acts of gross negligence on the part of the defendant, in that the latter drove the automobile from a parking lot into Peachtree Street near an intersection and at a time when there was a line of vehicular traffic waiting for the traffic light to change; that she drove her automobile with great force into a standing truck facing south on the west side of Peachtree Street, and after striking it speeded up and drove across the street, colliding with a Chrysler automobile traveling north on the street, then across the sidewalk on the opposite side of the street and into the front of a store facing the sidewalk. By amendment a second count was added, in which the foregoing was alleged together with additional averments to the effect that the defendant is the plaintiff's younger sister; that the plaintiff had previously provided for the defendant; that the defendant, partly to repay the plaintiff for the years she had resided with her, took the plaintiff into her home in her old age and cared for her; that the plaintiff suffered from cataract of the eyes, and it was an advantage to the defendant to see that the plaintiff received medical attention, since the failing eyesight required more care on the defendant's part in looking after her sister; and that the plaintiff was therefore an invitee in the defendant's automobile. No degree of negligence was specified in this count.
General and special demurrers to each count were overruled. The trial resulted in a verdict for the plaintiff, which did not specify on which count or counts the same was returned. The defendant filed a motion for a new trial on the general grounds and by amendment added three special grounds complaining of charges of the court. The judgments overruling this motion, and overruling the demurrers to the petition are assigned as error.
1. As to the demurrers, the sole contention of the plaintiff in error is that neither count sets out a cause of action based on lack of ordinary care only, for which reason it was error to overrule certain demurrers to count 2 of the petition; and also error, as assigned in the 3rd special ground of the amended motion for new trial, to charge the jury that, in substance, the plaintiff alleges that the defendant was substantially benefited by carrying her to the doctor (which was the errand on which the women were engaged at the time of the collision), and owed her a duty to exercise ordinary care; and that, should the jury find from the evidence that the defendant received benefits substantial to herself by so doing, then they would apply the rule as to ordinary care which he then gave them in charge.
We think that these contentions are well taken. The rule, of course, is that a guest is a person gratuitously riding for his own benefit, whereas an invitee, to whom the duty of exercising ordinary care, as distinguished from slight diligence only, is owed, is one "whose presence in . . . the automobile is by invitation of the owner for the purpose of conferring some substantial benefit upon his host, that is, something more than merely affording him the pleasure of his company." Nash v. Reed, 81 Ga. App. 473 ( 59 S.E.2d 259). In that case the act of the defendant's wife, who could not drive an automobile, in requesting the plaintiff to drive a defective automobile to the store for the mutual benefit of both in purchasing their respective groceries, constituted the plaintiff an invitee of the defendant to whom ordinary care was due. On the other hand, as in Perry v. Poss, 86 Ga. App. 169 ( 71 S.E.2d 283), where one who has already purchased groceries is driven home by one of the employees of the store, and it is not shown that the purchase was conditioned upon the ride, and the circumstances are as equally consistent with a mere gratuitous act on the part of the defendant as with an act which would confer a substantial benefit on the latter, the plaintiff has not carried the burden of showing a state of facts which would authorize a recovery on ordinary rather than gross negligence. Here no facts are alleged showing any legal obligation on the part of the defendant to care for her sister; but on the contrary it appears that her act in taking the sister into her home was predicated solely on moral responsibility, love and affection, and a feeling of gratitude for past favors. It further appears that the trip undertaken at the time the injuries occurred was solely for the benefit of the plaintiff in order that she might consult her doctor and receive treatment regarding her eyes. Under these circumstances, she was a gratuitous guest in the defendant's automobile. It follows that, while both counts set out a cause of action based on gross negligence, neither sets out a cause of action based on ordinary negligence on the theory that the plaintiff was the defendant's invitee on a mission for the purpose of conferring a substantial benefit on the defendant. It was accordingly error to overrule the demurrers to count 2 of the petition, pointing out this defect, and to charge the jury that they might, under certain circumstances, return a verdict for the plaintiff based on ordinary negligence only.
It follows that the evidence in the case, which substantially supported the allegations of the petition as herein above set out, did not authorize a general verdict for the plaintiff. In Flint Explosive Co. v. Edwards, 86 Ga. App. 404 (2) ( 71 S.E.2d 747), it is held as follows: "Where one count in a petition alleges simple negligence, and one alleges wilful and wanton conduct, and the court in its charge authorize a verdict on one or both counts, but the evidence does not authorize a verdict on the latter count, a general verdict for the plaintiff is illegal and cannot stand." Here, since it is impossible to tell from the verdict whether the jury found the defendant guilty of gross negligence or of ordinary negligence only, and since the charge of the court authorized a recovery in either event, but the pleadings and evidence make a case under the gross-negligence theory only, it is necessary that a new trial be granted.
2. Special grounds 1 and 2 complain of alleged errors in the charge which are not likely to recur, and are not specifically passed upon. The error assigned in the first special ground, to the effect that the court's language might have confused the jury into believing that gross negligence was the same as slight diligence, rather than the absence of slight diligence, was undoubtedly inadvertent and may have been cured by other portions of the charge. Special ground 2, further, is not so complete within itself as to require consideration by this court, in that the evidence referred to therein is not incorporated in this ground of the motion.
Although the ruling of the trial court was proper on the general demurrers to both counts of the petition, the trial judge erred in his ruling on certain of the special demurrers to count 2 of the petition, which in effect called on the court to construe it as a gross-negligence count instead of an ordinary-negligence count, as set forth in the first division hereof. Had the court done so and held count 2 to be a gross-negligence count, the subsequent error in the charge, submitting ordinary negligence to the jury, would not have occurred. This error having been assigned in the amended motion for new trial, the denial of such motion was also error. These errors require a reversal.
Judgment reversed. Townsend and Carlisle, JJ., concur.