Friedman v. Sloan , 125 Ga. App. 98 ( 1971 )

Pannell, Judge,

concurring specially. The "plain, palpable and undisputable” rule followed by the majority in the cases cited no longer has application to defendants in a tort action in view of the decision in Garrett v. Royal Bros. Co., 225 Ga. 533 (170 SE2d 294). The rule stated in Garrett v. Royal Bros. Co., is as follows: "The conduct of a defendant cannot be declared to be negligent, as matter of law, unless it has been so declared by a law-making body, and, in the absence of such a declaration the jury is the arbiter of the question of whether a defendant’s conduct on a given occasion is negligent, and, if so, whether such negligence is the degree of negligence required for a recovery by a plaintiff.”

In disposing of the Garrett case, the majority cites: "see Hardin v. Reynolds, 189 Ga. 589, 591(6 SE2d 913); Rivers v. Cole, 209 Ga. 406, 408 (73 SE2d 196).” These two cases announce and follow the rule that this court, as well as the Supreme Court of this State, are bound by older full bench decisions of the Supreme Court, which have not been overruled. The Garrett case had one judge dissenting. I assume, therefore, that the majority is attempting to say they refuse to follow the Garrett case because of this reason; however, the cases which they cite as older full bench decisions have no bearing on the question. Atlanta & W. P. R. Co. v. Hudson, 123 Ga. 108 (51 SE 29), and Central of Ga. R. Co. v. Cole, 135 Ga. 72 (68 SE 804), and Atlantic C. L. R. Co. v. McDonald, 135 Ga. 635, 636 (70 SE 249) hold that it is error for a trial judge to instruct a jury what ordinary care requires should be done in a particular case, or to instruct a jury that under certain circumstances a duty rests upon the defendant to take a certain course of action. Powell v. Berry, 145 Ga. 696, 701 (89 SE 753) dealt with the question of whether the negligence of a plaintiff barred plaintiff’s recovery as a matter of law. Under these circumstances, and the decisions cited by the majority, I feel I am bound by the decision of the Supreme Court in the Garrett case and, upon application of the rule therein stated, concur with the judgment reached in this case.