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Damages. Before Judge Nichols. Floyd Superior Court. October 19, 1954.
The plaintiff's evidence was sufficient to prove his case as laid, and the trial court erred in granting the nonsuit.
Claud A. Archer filed his petition claiming damages from D. G. Johnson and Aristocrat Ice Cream Company. Subsequently Aristocrat Ice Cream Company was stricken as a defendant, and the case proceeded to trial against Johnson alone. The petition of Archer as amended, alleged that, at the time complained of, the plaintiff was a deputy sheriff commissioned and acting under the direction of Johnson who was Sheriff of Floyd County; that the automobile in which they were riding was owned and operated in connection with the duties of Johnson and petitioner, and other deputy sheriffs about the official duties and business of the sheriff's office. Title to the automobile was registered in the name of Johnson but actually belonged to and was owned by petitioner, Johnson, and Elex Lindsey, another deputy sheriff; that petitioner as deputy sheriff was at all times under the direction, control and subject to the orders of the defendant Johnson as sheriff; as a part of their duties they were to investigate reports of crime in the county and arrest persons charged and connected therewith.
That Maple Street is a main street and highway in said county, between Rome and Lindale both in said county and is also known as the Lindale Highway; it is paved approximately 20 feet in width with a shoulder on either side thereof, and runs in a generally north and south direction. The place of business of Aristocrat Ice Cream Company is on the east side of the highway and to the left in going from the city of Rome in the direction of Lindale.
That the defendant Johnson told petitioner he had received a call from Lindale of a shooting that had taken place there and for petitioner to accompany him in response to a call, and in response to this direction, he got into the automobile which was driven by Johnson, petitioner occupying the right-hand side thereof and next to Johnson; that they proceeded along Maple Street in response to this call traveling at a rate of speed of approximately 80 miles per hour. That a truck of the Aristocrat Ice Cream Company was being driven along said street in a southerly direction toward Lindale, and when it reached the point approximately in front of the place of business of Aristocrat Ice Cream Company the driver and operator turned the same to the left and into the path of the approaching automobile being driven by Johnson, and as a result the truck and automobile collided, and petitioner was injured in certain ways and manners which are not necessary to describe for determining the question now before this court. That the siren on the automobile of Johnson was being sounded, making a loud noise, and indicated the approach of the sheriff's car, and that it was on an official trip, and was traveling at a high and rapid rate of speed. That the automobile of Johnson was being driven at such a high and rapid rate of speed that upon seeing the truck being turned to the left and in its path, the brakes thereon were applied, and the same skidded 182 1/2 feet before striking the truck with tremendous force practically demolishing the automobile in which petitioner was riding.
It was further alleged that Maple Street is used by all traffic and travel between Rome and Lindale, Rome being a city of approximately 30,000 inhabitants and Lindale having approximately 6,000 inhabitants and as a result the traffic and travel is extremely heavy and particularly at approximately 6 p. m.; that there are dwellings and places of business all the way from Rome to Lindale on either side of the street and particularly at the place where the collision occurred, there being driveways into said dwellings and places of approach and driveways into said places of business, and as a result automobiles are constantly turning from the street into the driveways and approaches.
That the driving of said automobile by said defendant Johnson at the time and place and at a rate of speed alleged was without due regard for the safety of persons using the highway, and was in reckless disregard of the safety of petitioner.
It was further alleged that Johnson was guilty of negligence per se, in that he was operating said automobile in violation of laws of the State of Georgia and in excess of 55 miles per hour; that he is guilty of negligence in driving said automobile at said high, rapid and illegal rate of speed without anticipating that the other vehicle would turn to the left and into the path of said automobile and in driving said automobile at a high and rapid rate of speed of 80 miles per hour.
Johnson filed his demurrer to the petition, both general and special, and upon hearing the same was overruled, and there is no exception before this court as to the overruling of this demurrer. Defendant filed an answer in which he admitted most of the allegations of the petition but he denied that the plaintiff was acting under the direction of the defendant but says he was only carrying out sworn duties of his office as deputy sheriff, and that he gave the plaintiff no direction or orders to accompany him, but simply stated the facts, and the plaintiff did accompany the defendant. He further alleged that he was only traveling at 65 miles per hour, and says that the red blinker light on his automobile and siren were both being operated, and that the truck of the Aristocrat Ice Cream Company was pulled to his left directly in the path of the defendant's automobile; that he did apply the brakes to his automobile but that, on account of the failure of the truck driver to signal his intention to pull into the left lane of traffic, the defendant did not have sufficient time to avoid striking the truck of the ice cream company.
The case went to trial before a jury, and, at the conclusion of evidence for the plaintiff, the court granted a nonsuit, to which exception was taken and, the correctness of that ruling is the question to be determined by this court.
As early as the year 1855 Justice Lumpkin in the case of Boyd v. State, 17 Ga. 194 (8) laid the cornerstone of the doctrine that it was to the public interest that law-enforcement officers while in the discharge of their duty be given sufficient latitude of action and ample protection. In a pretty phrase he denominates them "the ministers of justice." In the body of the opinion at page 204 it is said: "Ministers of justice, while in the execution of their offices, are under the peculiar protection of the law--a protection founded in wisdom and in every principle of political equity; for without it the public tranquillity can not possibly be maintained or private property secured; nor, in the ordinary course of things, will offenders of any kind be amenable to justice."
The principle has for nearly a century since the Boyd case been steadily formed, adhered to by the General Assembly and courts. The deference and loyalty of public, bench, and bar to the brave men who protect us against lawlessness is patriotic in its nature. We all recognize that the ends of justice demand that violators of our laws be apprehended, and that it is often necessary for the officer to travel at a greater speed than is permitted to others in order to overtake and bring a fleeing criminal to the bar of justice. For this very purpose was enacted Code (Ann. Supp.) 68-301 (d) prior to the recent enactment of the traffic code. The first subhead reads: "(d) The speed limitations set forth in this section shall not apply to authorized emergency vehicles when responding to emergency calls or when in immediate pursuit of an actual or suspected violator of the laws of this State: Provided, however, that all such emergency vehicles shall observe the limitations hereinabove imposed at all times other than those specified in this paragraph and this provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the public streets and highways, nor shall it protect the driver of any emergency vehicle from the consequences of reckless disregard of the safety of others."
This Code section is but a modern expression of the doctrine expressed in the Boyd case that arresting officers, "the ministers of justice," have a broad scope of authority and freedom of action while in the performance of their very responsible functions.
We now refer to another doctrine of our law. That doctrine is that the protection of the person and property of the citizen is the paramount purpose of government. "Protection to person and property is the paramount duty of government and shall be impartial and complete." Constitution of the State of Georgia of 1945, Art. I, Sec. I, Par. II (Code 2-102). In this momentous declaration of our bill of rights is laid the cornerstone of the Commonwealth itself. The right to use the public thoroughfares with reasonable safety is an important liberty to be enjoyed by the citizen. The protection of his person and automobile while exercising this privilege against anyone, even an officer of the law who fails to use reasonable care is guaranteed to him by this constitutional provision.
Code 68-301 (d), read as a whole, recognizes the first doctrine of law referred to in this opinion and it is desirable that the officers of the law not be deterred in overtaking the culprit or suspect by requiring him to abide by the speed limits fixed by statute.
The last portion of the Code sections enjoins upon him the corresponding duty of exercising that privilege in the following language: "and this provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with no regard for the safety of all persons using the public streets and highways, nor shall it protect the driver of any emergency vehicle from the consequences of reckless disregard of the safety of others."
Under the law as it existed prior to the passage of the Uniform Traffic Code (Ga. L. 1953, Nov.-Dec. Sess., p. 556), the sheriff who in the line of duty responded to an emergency call and was in pursuit of an actual or suspected violator of the law, had the right to drive at such speed as the circumstances demanded, even in excess of the speed limit fixed by the statute, provided he, in so doing, exercised due regard for the safety of other persons on the public thoroughfare over which he drove, and not with reckless disregard of the safety of others. Code 68-301 as amended by Ga. L. 1939, pp. 295, 296, 302, and Ga. L. 1950, p. 418.
The trend of our jurisprudence from that time has been to give all latitude and protection possible to the law-enforcement officers in the discharge of their duties. Yet, while it is most desirable and patently to the public interest that the officers of the law proceed with much promptness and speed in overtaking and apprehending the violators of our laws, and that they need not be answerable for simply exceeding the speed limits fixed by statute, yet the life and limb of innocent citizens must not be unreasonably endangered in the process by the failure of even an officer of the law.
If, on account of either a curve or a proclivity in the highway, the defendant could not see the truck ahead for a sufficient distance to enable him to stop, it was certainly a question for the jury as to whether he obeyed the statute, or whether he acted with reckless disregard for the safety of others.
The legislature intended by the act to do two things: first, to give the drivers of certain authorized emergency vehicles the right to travel when occasion required it at a speed in excess of the limit fixed by the statute applicable to motor vehicles generally; secondly, to protect the public on highways, and even those riding in the vehicles thus favored, from reckless disregard of their safety by the drivers of these privileged vehicles.
That the public is benefitted by much latitude and freedom of action being given the operator of authorized emergency vehicles is obvious, and the desirability of preserving the safety of the public by the provisions of the statute regulating the manner in which that freedom of action is to be exercised is equally as apparent.
It is desirable that the ambulance reach the stricken patient, that the fire engine proceed to and quench the fire, that the officer overtake and apprehend the criminal, but it is equally as important that innocent persons, whether or not connected with the emergency to be met, not be maimed or killed in the operation.
Conceding that a public officer does assume the ordinary risk of his employment, it does not appear from the evidence or the plaintiff's pleadings, that it was a duty of the plaintiff, as deputy sheriff to ride in an automobile on the particular highway involved in this case in approaching or overtaking a truck at the rate of speed of 80 miles or more per hour or when the automobile in which he was a passenger could not be brought to a stop before skidding 182 feet on dry pavement. Consequently, this court cannot hold that the evidence demanded a finding that the plaintiff had assumed the risk to which he was exposed on the occasion when he was injured.
Parker, Clary & Kent, contra.
Maddox & Maddox, for plaintiff in error.
Saturday May 23 03:23 EDT

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