Opinion
34980, 35097.
DECIDED JUNE 30, 1954. REHEARING DENIED JULY 27, 1954.
Damages. Before Judge Jones. Albany City Court. January 26, 1954.
Peacock, Perry Kelley, Hatcher, Smith Stubbs, for plaintiff in error.
Farkas, Landau Davis, contra.
Upon the trial of the issues formed by the pleadings, the evidence demanded the verdict for the defendant; and, it thus appearing, it is unnecessary to pass on the question presented by the exceptions to the overruling of the demurrers.
DECIDED JUNE 30, 1954 — REHEARING DENIED JULY 27, 1954.
Mrs. Mabel P. Davis filed this suit for damages for the full value of the life of her husband, John W. Davis, against Wright Contracting Company, Incorporated. The defendant filed numerous general and special demurrers; the petition was twice amended, and the original demurrers were renewed and additional demurrers to the amendments were filed after each amendment. The trial court overruled all grounds of demurrer, and the defendant brought the case to this court by direct bill of exceptions complaining of that order. While the case was pending before this court and before its argument here, the case came on for trial on its merits in the trial court and resulted in a verdict and judgment for the defendant. The plaintiff made a motion for new trial on the general grounds, which was amended by adding 15 special grounds. The trial court denied that motion, and the plaintiff filed her bill of exceptions complaining of that ruling.
Pursuant to a motion by counsel for the plaintiff in error, we deferred the decision in this case and in the companion case of Wright Contracting Co. v. Davis, ante, p. 548, pending the outcome of the decision on the motion for a new trial in the superior court. Such additional facts as are necessary to a clear understanding of the decision will appear in the opinion.
This is a tort action, in which Mrs. Davis seeks to recover damages on account of the death of her husband, which she contends was proximately caused by the defendant's negligence. The evidence proved the fact of the death of her husband resulting from his automobile going off the paved portion of the highway onto the shoulder of the right side of the highway and then apparently going out of control across the highway against a telephone post on the left side of the road. The evidence was also sufficient to make an issue for the jury as to whether the defendant was negligent in one or more of the ways alleged in the petition. But all the evidence did was no more than to show the death of the plaintiff's husband in the manner above related, and that the road was in a hazardous condition which could have caused Mr. Davis's automobile to run onto the shoulder of the road with the consequence that he lost control of it. There the evidence stops. It does not prima facie show that any of the conditions created by what the plaintiff contends was negligence on the defendant's part caused Mr. Davis's car to leave the road and the resulting fatal injuries to him. This element of proof in a case of the nature now being considered is necessary in order to entitle the plaintiff to recover. Mere proof that the plaintiff sustained the damage by reason of the tragic and most regrettable death of her husband and evidence of negligence on the part of the defendant without more do not render the defendant liable. Whitaker v. Jones, McDougald c. Co., 69 Ga. App. 711 ( 26 S.E.2d 545); Peggy Ann of Ga. v. Scoggins, 86 Ga. App. 109 ( 71 S.E.2d 89); Central R. Co. v. Freeman, 75 Ga. 331. This rule is well stated in the case of Stapleton v. Stapleton, 87 Ga. App. 417 ( 74 S.E.2d 116).
If the fact that the automobile of the plaintiff's husband did go off the road can, of itself, be considered as a circumstance that the defendant's negligence was a contributing cause to its having done so, certain it is that this evidence would point indifferently to that conclusion, the inference that it resulted from his own negligence, or from pure accident. Federal Reserve Bank of Atlanta v. Haynie, 46 Ga. App. 522 (1) ( 168 S.E. 112); Armour Co. v. Gulley, 61 Ga. App. 414 ( 6 S.E.2d 165).
This case is not to be confused with those in which there was some evidence that the plaintiff's injuries were proximately caused by the defendant's negligence, though the exact manner in which the plaintiff sustained damage cannot be ascertained; nor is this case to be held as a holding contrary to those pronouncing the solid principle that the very nature of the event in some instances shows that the negligence of the defendant was the proximate cause of the casualty suffered by the plaintiff. However, this is not one of those cases.
For the reason that the evidence demanded a verdict for the defendant, and that no evidence excluded could have supplied the essential element of proof that is lacking, none of the grounds of the motion for new trial shows harmful error, and all questions raised by the exception to the overruling of the demurrers as complained of in case No. 34980 are moot and need not be passed upon.
Judgment affirmed in case No. 85097. Writ of error dismissed in case No. 34980. Felton, C. J., and Nichols, J., concur.