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Tort; injuries to guest passenger. Fulton Superior Court. Before Judge Whitman. March 25, 1960.
1. The Superior Court of Berrien County had jurisdiction to entertain a homely appeal from a judgment of the Board of Workmen's Compensation refusing to set aside an award entered some months previously; and accordingly the judgment of the superior court reversing the ruling of the board and setting aside the agreement, unmodified and unappealed from, as a matter of law nullified the original approval of agreement. The defendant could not thereafter rely on such agreement as an adjudication that the plaintiff was barred from a right of action in tort against these defendants because the subject matter of the dispute was controlled by the law relating to workmen's compensation.
2. The objections raised to the charge of the court are without merit. Where no issue of comparative or contributory negligence on the part of a plaintiff guest passenger in a motor vehicle remains in the case, it is proper to so instruct the jury.
3. The court did not err in refusing to charge the jury that they might consider the passenger's statement to the defendant driver, correctly pointing out that he was taking the wrong road, as negligence proximately causing the plaintiff's injuries.
4. The evidence authorized the verdict in favor of the plaintiff.
James D. Buice filed an action in the Superior Court of Fulton County against Thomas Bentley, the driver, and Besco Corporation, the owner of a truck in which he was riding as a guest passenger when he received certain described injuries. The defendants filed a plea in bar contending that the defendant Besco Corporation was the employer of Buice; that he was injured while within the course of his employment, that an agreement for compensation had been entered into between the parties and approved by the State Board of Workmen's Compensation, and accordingly that this negligence action is not sustainable. The trial court found against the plea on evidence that the agreement in question had, on motion to vacate it filed by the plaintiff on the ground of mistake, been set aside by the Superior Court of Berrien County on appeal from a ruling of the board refusing to do so.
The case then proceeded to trial. The evidence for the plaintiff was to the effect that he was present in the truck not in his capacity of employee but was being given a ride by the driver in a personal capacity; that the driver either because of drowsiness or inattention missed a turn in the road; that the plaintiff called out to him that he was missing the turn; that the driver made a sudden turn, ran off the road, lost control of the vehicle, and hit an obstruction and that the plaintiff was thereby injured. The jury returned a verdict in favor of the plaintiff. The defendant filed a motion for new trial and a motion for a judgment notwithstanding the verdict, and it is on the denial of these motions that error is assigned.
1. "The judgment of a court having no jurisdiction of the person or subject-matter, or void for another cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it." Code 110-709. "A void judgment may be attacked in any court and by any person. In all other cases judgments may not be impeached collaterally, but must be set aside by the court rendering them." Code 110-701. "The judgment of a court of competent jurisdiction may not be collaterally attacked in any other court for irregularity, but shall be taken and held as a valid judgment until it is reversed or set aside." Code 110-708. "A judgment of a court having jurisdiction of both the parties and the subject-matter, however irregular or erroneous, is binding until set aside. Freeman v. Bass, 34 Ga. 365 (89 Am. Dec. 255); Porter v. Rountree, 111 Ga. 369 (36 S. E. 761); Code 110-708." Mitchell v. Arnall, 203 Ga. 384 (2) (47 S. E. 2d 258). The superior courts of this State have jurisdiction of the person and the subject matter in appeals from awards of the Board of Workmen's Compensation. Code 114-710. Accordingly, where after the plaintiff and corporate defendant had entered into an agreement as to compensation under the terms of the Workmen's Compensation Act which was approved by the board, but where the plaintiff refused to accept any benefits under the award, and was not otherwise estopped from contesting its validity, he filed a motion with the board to vacate the approval of agreement on the ground that the award had been entered into under a mistake of fact, he not having in truth and in fact sustained the injury in question while in the course of his employment, and where the refusal of the board to vacate the agreement was within the time prescribed by law appealed to the Superior Court of Berrien County, a court of competent jurisdiction, and there reversed by a judgment of that court holding that "the evidence conclusively shows that the alleged injury did not arise in the course of, and in pursuance of claimant's employment [and] the board was without jurisdiction of the subject matter," which judgment of the superior court was not appealed, it stands as a final and conclusive judgment on this issue. All parties to this action were parties to the appeal. The contention that such judgment was erroneous because the claimant waited an unreasonable length of time (18 months) to contest the validity of the original approval of the settlement agreement does not constitute an attack upon the jurisdiction of the superior court either as to the person or the subject matter, and accordingly the judgment of the Superior Court of Berrien County is a valid and binding judgment, never having been set aside or reversed. The effect of that judgment was to vacate the original award of the Board of Workmen's Compensation approving a settlement agreement between the parties. The plea in bar in the instant case, which alleged as its basis the original award of the board consisting of the approval of the settlement agreement which had been set aside, was not sustainable as a matter of law, and the trial court did not err in so holding.
2. Complaint is made of the following instructions by the court to the jury: "The court charges you that there is no evidence in this case of any failure on the part of plaintiff to exercise ordinary care for his own safety. The court further charges you that there is no evidence in this case that the plaintiff was negligent and that his negligence proximately caused or contributed to the alleged injuries and equalled or exceeded any negligence on the part of the defendant as alleged in sub-paragraph (b) of the defendant's amendment. So that you ladies and gentlemen will not have regard to subparagraphs (a) and (b) of the defendant's amendment to their answer . . . The court further charges you that a passenger or guest riding in the automobile wish another may rely upon the assumption that the driver of the automobile will exercise proper care and precaution . . . There has been testimony in this case in relation to beer and the drinking of beer, and that question, that is, of beer and the drinking of beer, by either or both of the parties to this case . . . has nothing whatever to do with this case and you will not have regard to any evidence in the case in relation to such matter on any issue or question of alleged negligence in the case."
The action was one by Buice, a guest passenger in a truck belonging to the defendant Besco Corporation and driven by the defendant Bentley. The testimony of both Buice and Bentley, the only persons present, is in agreement as to the following facts: Buice had driven the truck to Fitzgerald, Georgia; the men had stopped to eat a sandwich and Bentley had drunk one or two beers; Bentley then commenced driving toward Fitzgerald; he did not appear sleepy, did not appear affected by the beer was not in fact affected by the beer, and neither said anything nor drove in such a manner as to indicate to Bentley that he was either sleepy or under the influence of beer, but drove in a proper manner until he reached an intersection where he had previously told the plaintiff lie was going to turn; that Buice, who was watching the road, said, "Look out, you're going to miss your turn"; that Buice expected Bentley to stop and back up, but Bentley attempted a sharp left turn, lost control of the vehicle, hit a pole, and overturned, inflicting described injuries on the plaintiff.
It is not error for the court to state to the jury a fact supported by uncontradicted evidence. Wallace v. Mize, 153 Ga. 374, 385 (112 S. E. 724). "No duty devolves upon the guest passenger, who has no right or duty to control the operation of the automobile, unless the circumstances are such that he is afforded a reasonable opportunity to take appropriate action to avoid being injured." Smith v. Harrison, 92 Ga. App. 576 (4) (89 S. E. 2d 273). The court should not charge on an issue as to which there is no evidence, and, accordingly, should not charge on comparative or contributory negligence of a plaintiff guest passenger where there is no evidence to show that such passenger was negligent in failing to anticipate that the defendant driver was operating the vehicle in a manner likely to cause injury to himself. See Lawrence v. Hays, 92 Ga. App. 778 (90 S. E. 2d 102). In so far as the charge of the court related to the drinking of beer, it Was favorable to the defendant, for it removed from the case any basis for the jury finding him negligent because of being under the influence of intoxicants. It also, of course, removed any issue of the plaintiff being negligent in allowing the defendant to drive the truck after drinking the beer, but, since all of the testimony was to the effect that the amount consumed had no effect on either party, no valid issue entered or remained in the case on this point. Since the undisputed evidence demanded a finding that the plaintiff, in the exercise of ordinary care for his own safety, had no reason for being alarmed at the manner of the defendant's operation of the vehicle until the very moment of disaster, the instructions complained of in special grounds 4, 5, 6, 7, 9 and 10 of the amended motion for new trial are without merit.
3. Special ground 8 complains of the trial court's failure to give in charge the following request: "I charge you gentlemen of the jury that, if you find from the evidence that defendant Bentley, in turning said motor vehicle to the left at or near the intersection described in this case, acted under an involuntary impulse pursuant to some statement made by the plaintiff at or near said intersection, then you may consider whether or not the conduct of the plaintiff in any statement he may have made to defendant Bentley at or near said intersection constituted negligence, and if you find that plaintiff and make a statement to defendant Bentley at or near said intersection which caused defendant Bentley to suddenly turn said motor vehicle off of the road on which said motor vehicle was being driven and into the intersecting road, and you find this conduct on the part of the plaintiff to be negligence and that such negligence was the proximate cause of his injuries, that in that event plaintiff would not be entitled to recover." While the exact words used by Buice were disputed, he said either, "Look out, you're missing your turn," or "You are going to miss your turn," or "Hey, there's where we turn." The defendant testified to nothing in the plaintiff's voice or manner which would have made these words, otherwise proper under the circumstances, so imperative or evocative of sudden emergency as to precipitate any reckless action on his part. The plaintiff's conduct in pointing out the correct road was not negligence, and the court did not err in refusing to so charge.
4. Neither the general grounds of the motion for new trial nor the motion for a judgment notwithstanding the verdict are meritorious. Although under the defendant's evidence the upset was due primarily to loose gravel of which he had no notice, the facts authorized a finding that the driver was guilty of, gross negligence in that, after missing his turn, he cut sharply to the left with two wheels off of the pavement, lost control of the truck, attempted to accelerate, and hit a post which caused the vehicle to upset. The jury was authorized to find from the evidence that the injuries to the plaintiff were occasioned by acts of gross negligence on the part of the defendant. Werbell v. Walters, 93 Ga. App. 378 (91 S. E. 2d 841); Parker v. Johnson, 97 Ga. App. 261 (102 S. E. 2d 917).
The trial court did not err in overruling the plea in bar, the motion for new trial, and the motion for a judgment notwithstanding the verdict.
Judgment affirmed. Gardner, P. J., Carlisle and Frankum, JJ., concur.
J. Corbett Peek, Jr., contra.
T. J. Long, Ben Weinberg, Jr., for plaintiffs in error.
Friday May 22 23:54 EDT

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