Blanchard v. Ogletree , 41 Ga. App. 4 ( 1929 )

Jenkins, P. J.

This was a suit for damages on account of the homicide

of the plaintiff’s daughter, who was killed when an automobile which she had entered as the invited guest of the defendant, and which the defendant was driving, was overturned. The evidence as to the facts and circumstances attending the accident presented an issue as to whether the defendant was guilty of gross negligence at the time the accident occurred, the testimony being such as to authorize a finding either for or against the defendant on that issue. By an amendment to the petition it was alleged that the deceased had, prior to the accident, not only protested against the rate of speed at which the defendant was driving, but requested to be allowed to leave the car and return to Atlanta on the train, but that the defendant refused and disregarded the request, and continued to increase his rate of speed. On the trial the only evidence offered by the plaintiff as to the acts and conduct of the defendant at the time of and just prior, to the accident consisted of testimony as to statements made by him after the accident, although there were two other persons in the car at the time the deceased met her death, and one of these persons was present at the trial, and was sworn as a witness for the plaintiff. The jury found in favor of the defendant, and the plaintiff excepts to the overruling of her motion for new trial. Held:

1. “One riding by invitation and gratuitously in another’s automobile can not recover for injury caused by the other’s negligence in driving, unless it amounted to gross negligence.” Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297); Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256); Peavy v. Peavy, 36 Ga. App. 202 (136 S. E. 96). See also, in this connection, Slaton v. Hall, 168 Ga. 710 (148 S. E. 741).

2. The rule set forth in the foregoing division of the syllabus should not apply, however, where there was what amounted to a change in the legal relationship of the parties by reason of a request made by the passenger to be permitted to leave the car prior to the accident, and the continuance of the passenger in the car was occasioned by the refusal of the driver to accede to the request. In the instant case there was testimony of declarations made by the defendant shortly after the accident that if he had permitted the deceased to get out of the car as she had requested, she would then be alive. This testimony' may or may not have been fully explained by that of another witness to the effect that the statement had no reference to any protest made by the deceased on account of the defendant’s manner of driving, but that the request to be permitted to leave the automobile and return home on the train was made when the defendant expressed a wish that the party have breakfast in the town to which they had driven; to which proposal the decedent demurred, then and there offering to return by train, whereupon the defendant acceded to the wishes of the decedent and turned the automobile .towards home and was proceeding in that direction when the accident occurred. There was some evidence, however, from another, witness to the effect that the defendant stated to him that the decedent requested permission to leave the car after the car had been turned towards home. It therefore appears to be a disputed issue whether the decedent was being carried in the car at the time of the accident contrary to her expressed wish and desire.

3. Exception is taken to the giving in charge by the court of section 5749 of the Civil Code (1910), as follows: “Where a party has evidence in his power and within his reach, by which he 'may repel a claim or charge against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, a presumption arises 'that the charge or claim is well founded; but this presumption may be rebutted.” In the instant case the plaintiff failed to introduce the witness who was a passenger in the automobile at the time of the accident .and who was present in court and sworn as a witness, and who had likewise brought suit against the defendant for injuries sustained in the same accident, in which suit he was represented by the same counsel as plaintiff, but her reliance instead upon secondary evidence, in the form of testimony of declarations made by the defendant, not certain and clear as to its proper import, justified the giving in charge of the principle of law set forth by the code section, since, under such circumstances, the failure of the plaintiff to introduce the witness, who was cognizant of all the facts and circumstances surrounding the accident, including the plaintiff’s contention that the decedent had been refused permission to leave the ear, could have authorized the presumption set forth in the code.

Decided December 13, 1929. Adhered to on rehearing, February 21, 1930. McCutchen, Bowden & Qaggsiatter, for plaintiff: Foley & Chappell, for defendant.

4. The evidence being in dispute relative to the status and relationship of the decedent at the time of the injury, the judge, on his own motion, should have charged the jury the law relative to the degree of care chargeable to the defendant in view of whichever status the jury might find that the decedent occupied at the time of the accident, and his failure to do so requires that the verdict and judgment be set aside. The other exceptions, relating to questions not likely to arise upon a second trial of the case, need not be dealt with.

Judgment reversed.

Stephens and Bell, JJ., concur.