Carr v. John J. Woodside Storage Co. , 217 Ga. 438 ( 1961 )

Mobley, Justice,

dissenting. The trial judge, in my opinion, was correct in refusing to give the charge requested, as was held by the Court of Appeals, because the charge was argumentative, misleading, was not adjusted to the pleadings and evidence, and was not itself complete and perfect. Lewis v. State, 196 Ga. 755 (3) (27 SE2d 659); Vinson v. Citizens & Sou. Nat. Bank, 208 Ga. 813 (69 SE2d 866).

For the court to charge, as requested, that “the plaintiff contends that the defendant’s agent, John Albert Smith, committed wilful and wanton negligence through driving the defendant’s track at a fast rate of speed while intoxicated, and through failing to keep a proper lookout ahead, and through failing to reduce speed on the approach to an intersection, and through failure to apply the brakes in time to avoid colliding with the automobile driven by her son,” without any explanation of what constitutes wilful and wanton negligence (if there is such a thing as wilful and wanton negligence), and to follow that instruction with the charge that, “if from the evidence you find that John Albert Smith was guilty of wilful and wanton negligence, and that such wilful and wanton negligence resulted in the homicide of plaintiff’s son, then in that event, even though you might find that plaintiff’s son committed negligence, such negligence on the part of her son would not defeat a recovery by plaintiff in this case,” implies and would lead the jury to believe that, if the enumerated acts of negligence were proved, then the defendant was guilty of wilful and wanton negligence, and the plaintiff could recover even though her son was negligent. The enumerated acts of negligence in and of themselves do not constitute wilful and wanton negligence but would be classified either as ordinary negligence as defined in Code § 105-201 or gross negligence as defined in Code § 105-203. The Code does not provide any degree of negligence known as “wilful and wanton negligence,” and Jenkins, P. J., in Blanchard v. Ogletree, 41 Ga. App. 4 (152 SE 116), at page 7, quoting from 45 C. J. 1090 “. . . the words ‘negligence’ and ‘wilfulness’ are incompatible, and a cause of action sounding in ordinary negligence is one thing and one sounding in wilful misconduct is another,” pointed out that wilful and wanton misconduct and gross negligence are not, in this State, regarded as synonymous, although it has been held that gross negligence may be so accounted where the evidence indicates “that entire absence of care which would raise the presumption of conscious indifference” or that with reckless indifference the person acted with actual or imputed knowledge that the inevitable or probable consequence of his conduct would be to inflict injury. Southern Ry. Co. v. O’Bryan, 119 Ga. 147 (1) (45 SE 1000); Southern Ry. Co. v. Davis, 132 Ga. 812 (65 SE 131); Harris v. Reid, 30 Ga. App. 187 (117 SE 256); Buffington v. Atlanta, B. & C. Ry. Co., 47 Ga. App. 85 (169 SE 756).

The majority opinion relies upon the'ruling made in Central of Ga. Ry. Co. v. Moore, 5 Ga. App. 562 (63 SE 642), where the court held that, if the plaintiff was injured by the wilful and wanton negligence of the defendant, he would be entitled to recover irrespective of whether he was guilty of contributory negligence or not. The majority failed to note the admonition which immediately followed that ruling, where Judge Powell, speaking for the court, said: “The court, in charging the jury upon the subject, should make it plain that it is never applicable unless the defendant’s conduct was such as to evince a wilful intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences, where human .life or limb was involved, as to justify the jury in finding a wantonness equivalent in spirit to actual intent.” The requested charge was incomplete and imperfect in that it failed to include such instructions.

The effect of the request to charge was to instruct the jury that, if they found the defendant guilty of the enumerated acts of negligence, that would constitute wilful and wanton negligence on his part and the negligence of plaintiff’s son would not relieve the defendant of liability, whereas they should have been instructed that the rule would apply if the jury found a wilful intention on the part of the defendant to inflict the injury, or else, the defendant was so reckless or so charged with indifference t'o the consequences as to justify a finding of wantonness equivalent in spirit to actual intent to inflict the injury. See Western & Atlantic Ry. Co. v. Bailey, 105 Ga. 100, 101 (31 SE 547); Southern Ry. Co. v. Chatman, 124 Ga. 1026, 1031 (53 SE 692, 6 LRA (NS) 283, 4 AC 675).

I am authorized to state that Justice Almand concurs in this dissent.