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ROBERTS v. KING et al.
ROBERTS v. KING et al.
Actions for damages. Newton Superior Court. Before Judge Hubert. March 25, 1960.
FELTON, Chief Judge.
Mrs. Ruby Dale Roberts and Albert W. Roberts, the parents of Norris B. Roberts, a minor, brought separate actions in the Superior Court of Newton County to recover damages for the tortious homicide of the minor. The action filed by Albert W. Roberts sought recovery for the loss of use of said minor's services plus funeral expenses incurred in the interment of the body of said child. The action filed by Mrs. Ruby Dale Roberts sought damages for the full value of the minor's life. The actions were in two counts. Count 1 charged the defendants with gross negligence and count 2 charged them with wilful and wanton misconduct. The defendants in each case were James Wayne King, Edward L. King, William C. Bouchillon, Jr., and Johnny Turner. The defendant Edward L. King, father of James Wayne King, was made a party defendant in these actions under the family-purpose automobile doctrine. The defendant Johnny Turner was made a party defendant in these actions by virtue of the fact that he was the owner and occupant of a vehicle driven by defendant William C. Bouchillon, Jr. The defendants James Wayne King and William C. Bouchillon, Jr., were changed with the unlawful operation of the two automobiles which they were driving on a two-lane public highway in the nighttime while engaged in a race between the two automobiles. The cases were consolidated and tried together. At the conclusion of all the evidence the plaintiffs moved for a directed verdict in their favor against James Wayne King, William C. Bouchillon, Jr., and Johnny Turner on count 2 of their petitions, on the issue of liability. No such motion was made with respect to defendant Edward L. King but the plaintiffs moved the court that it submit to the jury whether Edward L. King was liable on the theory of family-purpose doctrine, and the motion for directed verdicts as aforesaid was predicated on the contention that the uncontradicted evidence adduced on the trial showed as a matter of law that James Wayne King, William C. Bouchillon, Jr., and Johnny Turner were guilty of each and every one of the specifications of wilful and wanton misconduct charged against them in the petitions. The court directed verdicts for all the defendants. The court overruled the plaintiffs' motions for judgments notwithstanding the verdicts and their motions for new trials. The plaintiffs except to the direction of the verdicts for the defendants, to the overruling of their motions for judgment notwithstanding the verdict and to the overruling of their motions for new trial.
1. The plaintiffs in these cases contend that the evidence did not demand a verdict for the defendants for the reason that the contributory negligence of the deceased son in participating in the race is not a bar to their recovery because the drivers of the racing automobiles were guilty of wilful and wanton misconduct, and for the reason that the deceased did not assume the risks of an "all-out" race because he thought that the race would be only a "drag" race. It is true that in certain types of cases the contributory negligence of a person, injury to whom forms the basis of the right of action, is not a bar to an action for wilful and wanton misconduct, Central R. & Bkg. Co. v. Denson, 84 Ga. 774 (11 S. E. 1039); Young v. South Georgia Ry. Co., 34 Ga. App. 537 (130 S. E. 542); Fairburn & Atlanta Ry. &c. Co. v. Latham, 26 Ga. App. 698 (1) (107 S. E. 88). These cases are distinguishable from the instant case in that in them there was no conscious choice of the injured parties to assume the risk of wanton misconduct which the injured party knew was contemplated by the party inflicting the injury. Where one assumes the risk of wilful and wanton misconduct and is injured or killed thereby a cause of action for such injury or death is barred. Code 105-1803. The true defense in these cases is the doctrine of assumption of the risks. This doctrine has sometimes been mistakenly referred to as contributory negligence. In the cases in which this has been done the term contributory negligence truly means assumption of risk or consent to the injury for the reason that in such cases the so-called contributory negligence would not necessarily have barred the action where wilful and wanton misconduct was involved, whereas the assumption of risk doctrine would have. Georgia R. & Bkg. Co. v. Greer, 7 Ga. App 292, 298 (66 S. E. 961). In that case the court stated: "Even where the defendant's act is such, by reason of its wantonness or otherwise, as to cut off the defense of contributory negligence, the plaintiff can not recover, if it appears that he consented to the injury." Insofar as cases like the instant case are concerned we can see no difference between the consent principle and the principle of assumption of risk. The doctrine of assumption of risk in general is of recent development, but has been applied to Georgia under the consent doctrine but almost always in the name of contributory negligence. Williams v. Owens, 85 Ga. App. 549 (69 S. E. 2d 787). Assumption of risk in its simplest and primary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk. "The result is that the defendant is simply under no legal duty to protect the plaintiff. A second, and closely related meaning, is that the plaintiff, with the knowledge of the risk has entered voluntarily into some relation with the defendant which necessarily involves it, and so is regarded for tacitly or impliedly agreeing to take his own chances." Prosser, Law of Torts, (2d ed.) p. 303, "Assumption of Risk." 55. "In working out the distinction the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be. The two may coexist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care." Id. 55, p. 305. The necessary elements of assumption of risk by the guest have been clearly defined as follows: first, there must be a hazard or danger inconsistent with the safety of the guest; second, the guest must have a knowledge and appreciation of the hazards; and third, there must be acquiescence or willingness on the part of the guest
Under the evidence in this case the drivers of the automobiles were guilty of wilful and wanton misconduct in racing on a public highway contrary to the laws of the State. This would have been true if the race had been a drag race. When one assumes the risk of the wilful and wanton misconduct of another a recovery on the basis of such misconduct is precluded and the law will not undertake to divide the wantonness into degrees or fractions of degrees to ascertain whether the death or injury resulting was fully realized and appreciated by the one so assuming the risks. The law will hold such a one to have assumed whatever risks develop in the process of the activity engaged in. In Landers v. French's Ice Cream Co., 98 Ga. App. 317 (106 S. E. 2d 325), the passenger did not enter the automobile with the knowledge of an intended race.
These conclusions render a decision on the family-purpose question unnecessary.
The court did not err in directing a verdict for the defendants nor in overruling the plaintiffs' motions for judgment n.o.v. and their motions for new trial.
Judgments affirmed. Nichols and Bell, JJ., concur.
Sam F. Lowe, Jr., Clarence Vaughn, Jr., Smith, Field, Doremus & Ringel, W. D. Ballard, King, Ballard & King, contra.
Greene, Neely, Buckley & DeRieux, Burt DeRieux, John D. Jones, John L. Jernigan, Sanders McD. Marshall, for plaintiffs in error.
Saturday May 23 00:20 EDT

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