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Vogt v. Rice

Court of Appeals of Georgia
Sep 6, 1966
114 Ga. App. 251 (Ga. Ct. App. 1966)



ARGUED JULY 5, 1966.


Action for damages. Muscogee Superior Court. Before Judge Land.

L. B. Kent, for appellant.

Kelly, Champion Henson, J. Norman Pease, for appellee.

1. Pretermitting the question of whether the objection to the charges made was sufficiently definite under the provisions of Sec. 6 of the Act of 1966 (Ga. L. 1966, pp. 493, 498; Code Ann. § 70-207), the grounds of objection are based entirely on the alleged lack of evidence in the particulars therein set forth. Under the evidence the jury was authorized to find that the plaintiff, by reason of intoxication, went to sleep on the back seat of the defendant's automobile with knowledge that the defendant was under the influence of alcoholic beverages and that the defendant would subsequently drive the automobile, and the jury was further authorized to find that the subsequent wreck of the automobile was caused by excessive speed brought on by the drinking of the defendant driver. Under these circumstances the jury was authorized to find that the plaintiff assumed the risk and was guilty of such lack of ordinary care for his own protection and safety as to preclude a recovery on his part even though he was asleep during the entire ride preceding the wreck in which he was injured. See in this connection, Sparks v. Porcher, 109 Ga. App. 334 ( 136 S.E.2d 153), and cases cited and discussed therein. There was no error in the charges complained of in enumerations of error numbers 3, 4 and 5 because of the grounds stated to the trial judge.

2. Paragraph (a) of Section 17 of the Appellate Practice Act of 1965 (Ga. L. 1965, pp. 18, 31), as amended by Section 6 of the Act of 1966 (Ga. L. 1966, pp. 493, 498; Code Ann. § 70-207), reads: "Except as otherwise provided in this section; in all cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury, and objections need not be made with the particularity of assignments of error (abolished by this Act) and need only be as reasonably definite as the circumstances will permit." The record in the present case does not disclose that appellant made any objections pursuant to the requirements of the above section as to the charges complained of in enumerations of error numbers 1, 2 and 6, or the failure to charge as requested complained of in enumerations of error numbers 7 and 8. The requirements of Par. (c) of Sec. 17 not having been met, these alleged errors, therefore, present no question for review. See Strong v. Palmour, 113 Ga. App. 750 ( 149 S.E.2d 745); King v. Adams, 113 Ga. App. 708 ( 149 S.E.2d 548).

3. The evidence was amply sufficient to authorize the verdict for the defendant, and there being no reversible error shown, the judgment in accordance with the verdict must be affirmed.

Judgment affirmed. Felton, C. J., and Frankum, J., concur.


The plaintiff was injured when the automobile in which he was riding as a guest while asleep, and while the defendant was driving, left the highway. The automobile was being driven, about 11 p. m., on a paved street approximately 32 feet wide at an admitted speed of 50 miles per hour in a 30 mile per hour zone when the pavement ended and became a dirt street about 25 feet wide within 10 feet of the end of the pavement and then made a sharp left turn. There were no street lights in the area, no reflectors to show the end of the pavement, and no signs warning of the turn. The defendant testified that his right front wheel caught in soft dirt sand when he left the pavement and that this caused the car to go off the road. Plaintiff and defendant earlier in the evening about 7 p. m., together with a third party, had met in a restaurant, where the defendant had one or two drinks. The three then left and drove in the defendant's car to a place where a party was being held and the plaintiff saw the defendant take another drink but did not know how much the defendant had to drink during the evening. The plaintiff had one drink at the restaurant or a drink and a half, "no more than two drinks." Plaintiff further admitted having two drinks at the party. Before the party was over plaintiff got sleepy, which he explains as being caused by loss of sleep for the previous two nights because of late work, and he went out, got on the back seat of the defendant's automobile and went to sleep and was still asleep when the defendant left the party, got into the automobile, and shortly thereafter had the wreck in which the plaintiff was injured. The defendant stated that he was not under the influence of the intoxicating beverages at the time of the injury to plaintiff. There was no testimony as to any conduct or acts of either the plaintiff or the defendant which would indicate that they were under the influence of alcohol other than that above set forth. Upon the trial, the jury returned a verdict for the defendant. At the conclusion of the charge to the jury, counsel for the plaintiff made the following objection to the charge of the court: "On behalf of the plaintiff, Your Honor, I would like to object to the charges on — for his protection and ordinary care and assumption of the risk and the charge on `a guest being intoxicated' — on — I would like for my objection to be made to all four of those charges in that there was no evidence that the guest was intoxicated; there was no evidence to the effect that he assumed any risk and there was no evidence to warrant a charge on his failure to exercise ordinary care for his own safety." The above was the sole objection made to the charge as given or the failure to give any charge.

Summaries of

Vogt v. Rice

Court of Appeals of Georgia
Sep 6, 1966
114 Ga. App. 251 (Ga. Ct. App. 1966)
Case details for

Vogt v. Rice

Case Details

Full title:VOGT v. RICE

Court:Court of Appeals of Georgia

Date published: Sep 6, 1966


114 Ga. App. 251 (Ga. Ct. App. 1966)
150 S.E.2d 691

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