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LANE v. VARNER.
34862.
Damages. Before Judge Perryman. Lincoln Superior Court. July 10, 1953.
TOWNSEND, J.
1. The right of the plaintiff to recover in this automobile guest case against the host driver depends upon the South Carolina law, which authorizes such recovery either where the host driver intentionally injures the plaintiff guest or where he injures such guest in the operation of the automobile under circumstances amounting to heedlessness or reckless disregard of the rights of others; and since both the pleadings of the plaintiff and all the evidence in this case disclose that recovery is sought, not because of any intentional act of the plaintiff, but solely for heedlessness or reckless disregard of the rights of others, it was error for the trial court to charge the jury, as to the plaintiff's contentions, that "he sets forth and alleges as an act of negligence that this was intentionally done by [the defendant] and also alleges that [the defendant] acted heedlessly and in reckless disregard of the plaintiff's rights as a passenger."
2. (a) Since the word "accident" has two distinct meanings as ordinarily applied in tort action.bone the legal term meaning an unforeseen occurrence not resulting from the negligence of either party, and the other the lay term meaning any injury or casualty, the better practice in charging the jury the law of misfortune and accident is for the trial court to make it clear that the former technical meaning of the term, and not, the latter lay meaning thereof, constitutes a defense to the action.
(b) Questions of diligence and negligence are ordinarily for the determination of the jury, and even where the plaintiff relies for recovery on negligence per se, it is ordinarily a jury, question as to whether or not such negligence was the proximate cause of the injury. A jury question was presented by the evidence, as to whether the defendant drove the automobile in such a manner as to constitute a violation of the South Carolina statute which was pleaded by the plaintiff as the basis for his recovery, or whether the action of a dog in jumping toward the defendant brought about the occurrence instead of the negligence of the defendant. The jury might also have found that the automobile was operated in violation of the South Carolina statute, and that this was brought about by the action of the dog in jumping toward the defendant driver, and still find that the latter was so negligent as to authorize a recovery, it being a jury question as to whether or not this would constitute a proper excuse for the defendant's failure to drive the automobile in accordance with statutory provisions. Accordingly, a proper charge on the law of misfortune and accident as a defense would not be erroneous.
(c) Where one party invokes certain provisions of the law of another State as applicable to his position in the case, such party is not required to introduce all of the law of such State that might be thus applicable. The opposite party may offer any such law that he considers beneficial to him which his adversary has not invoked. Where a part of the law of the foreign State is thus not presented, and where such other State is one of the original thirteen States, it will be presumed that the law of that State is the common law as declared and interpreted by the courts of this State. Accordingly, where, as here, the plaintiff offered certain statutes of the State of South Carolina, but the law of misfortune and accident as a defense to a tort action was not invoked by either party, it was proper for the trial court to charge that principle as it exists under the common law as interpreted by the courts of this State. 3, 4. Other special grounds of the amended motion for new trial show no reversible error.
Thomas Lane filed an action for damages against Roy Varner in the Superior Court of Lincoln County, which petition alleged in substance: that on December 13, 1952, the plaintiff was riding as a passenger in the defendant's automobile in South Carolina, proceeding towards Augusta, Georgia; that the defendant owned a small dog which was at the plaintiff's feet, and the defendant requested the plaintiff to feed the dog; that as he was doing so the defendant ran the automobile across the road onto the left side, and then completely off the road, down an embankment, and into a power-line pole, injuring the plaintiff in certain named particulars; that his action in so doing "constituted gross negligence and reckless driving, in that his actions showed a wilful and wanton disregard for the safety of plaintiff." No demurrers were filed, and on the trial of the case the evidence was in the main undisputed as to the facts, except that the defendant testified that, as the plaintiff was leaning over to pour milk in a cup for the dog, he glanced over, taking his eyes off the road and the dog jumped at him; that he gave him a slap with his right hand and took his eye off the road for a second or two, and was in the ditch before he knew it. The plaintiff testified: "I don't know what caused Mr. Varner to go from the right-hand side of the road to the left-hand side of the road, except that he claims if it hadn't been for the dog there would have been no wreck, and this is the first time I have heard of his saying the dog jumped in his face."
The following South Carolina statutes were pleaded and proved by the plaintiff: "No person transported by the owner or operator of a motor vehicle or airship as his guest without payment for such transportation shall have a cause of action for damages against such automobile or airship, its owner or operator, for injury, death or loss, in case of accident unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others." 5908, Civil Code of South Carolina, 1942. "A. Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway except as follows (exceptions immaterial) ." Article VII, 67, Act No. 281, Acts of South Carolina of 1949. "Any person who drives any vehicle in such a manner as to indicate either a wilful or wanton disregard for the safety of persons or property is guilty of reckless driving." Art. V, 58, Act No. 281, Acts of South Carolina of 1949.
A jury verdict was returned for the defendant. The plaintiff filed a motion for new trial on the general grounds, which was later amended by the addition of certain special grounds, and the denial of this motion is assigned as error.
1. Special ground 1 of the amended motion for new trial assigns error on the court's charge as follows: "The plaintiff contends that on account of defendant's reckless disregard of his rights, as set forth in his petition, that he was injured in the way and manner he contends for; he sets forth and alleges as an act of negligence that this was intentionally done by Mr. Varner, and also alleges that Mr. Varner acted heedlessly and in reckless disregard of plaintiff's rights as a passenger, and therefore his injuries were caused by these acts of negligence, and that he is entitled to recover from Mr. Varner damages for his injuries . . . Now, gentlemen, as I have stated to you, it is the contention of the plaintiff in this case that he was a guest in that particular car, and he contends that he was intentionally injured, as one of the acts of negligence he contends that he was intentionally injured by Mr. Varner, and also he contends that the operator, that is, Mr. Varner, caused his injuries by his heedlessness and reckless disregard of his rights."
As seen from the statement of facts, supra, the laws of South Carolina allow recovery in guest cases if the act "shall have been intentional on the part of said owner or operator or caused by his heedlessness or reckless disregard of the rights of others"; however, the petition contended only that the defendant's acts "showed a wilful and wanton disregard for the safety of plaintiff," and did not allege any intentional misconduct, nor was there any evidence whatever of intentional misconduct. The charge was therefore error and, unless it was harmless, would demand a reversal of the case. Where a charge places a greater burden upon one of the parties than that which he is called upon to carry by law, such charge is harmful. Southern Ry. Co. v. Thompson, 129 Ga. 367 (1) (58 S. E. 1044). Although the court did elsewhere in the charge state that the plaintiff might recover upon proof of either intentional misconduct or heedless and reckless disregard of the defendant's rights, the charge as a whole emphasized that the defendant contended the misconduct was intentional and sought to base his recovery thereon, which was untrue. Similar errors in charges as to the contentions of the parties have frequently been held to be error. Mitchell v. Schofield's Sons Co., 16 Ga. App. 686 (6) (85 S. E. 978), and citations; Evans v. Kent, 28 Ga. App. 172 (1) (110 S. E. 685); Ezell v. Mobley, 150 Ga. 257 (103 S. E. 238); Rouse v. State, 2 Ga. App. 184 (4) (58 S. E. 416); McJenkin Ins. &c. Co. v. Thompson, 79 Ga. App. 473 (1) (54 S. E. 2d 336); Southern Ry. Co. v. Gresham, 114 Ga. 183 (2) (39 S. E. 883); Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 (7) (54 S. E. 110). As stated in First Nat. Bank v. Langston, 44 Ga. App. 465, 467 (161 S. E. 637): "The defendant was entitled to have the case tried upon the defenses which it elected to assert, and should not have been placed in the attitude of snaking a further issue . . . when . . . there was no contention whatever concerning it. The fact that the defendant was thus placed in a false and losing position as to one issue tended to discredit its position as to other issues, and might have been the deciding factor in the deliberations of the jury." Here, the plaintiff was placed in a false and losing position as to one of the only two issues on which a legal recovery might' be founded, and, these issues being closely related, it might well have affected the decision of the case. The charge excepted to was error requiring the grant of a new trial.
2. Special ground 2 contends that it was error for the court to give in charge the law of accident, to the effect that an accident is an event which takes place without one's foresight or expectation, which proceeds from an unknown cause or an unusual effect of a known cause, not to be expected; that the defendant contends that "this was purely an accident," and that, if the plaintiff were injured as the result of an accident, he would not be entitled to recover, and the objection is on the ground that there was no issue as to "accident" made either by the pleadings or the evidence, and further that the charge embodied the defense of accident as enunciated under the law of Georgia, whereas the collision occurred in South Carolina, with the statutes of that State being specially pleaded and proved, and that it was harmful error for the court to substitute the law of Georgia for the statute of another State under these circumstances.
(a) Unfortunately, the word "accident" has two separate and distinct meanings. In Georgia law, and as charged by the judge in this case, it means, in connection with personal-injury cases, an injury which occurs without being caused by the negligence of either the plaintiff or the defendant. Alabama Great Southern Ry. Co. v. Brown, 138 Ga. 328 (6) (75 S. E. 330); Code 102-103. The South Carolina statute upon which the plaintiff relied for recovery and which the court also charged the jury, however, uses the word "accident" as a synonym for "injury" or "casualty" in the provision that a guest cannot recover "in case of accident unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others." It is obviously confusing to a jury to charge that, in effect, accident means an unforeseen event which will preclude the plaintiff from recovery and to further charge that the plaintiff cannot recover unless the accident was intentional or caused by the heedlessness and recklessness of the defendant. In such case, it would be well for the court to point out to the jury the different sense in which the word is used in its various connotations.
(b) Where, under the pleadings and evidence, it is obvious that the injuries must have resulted from negligence on the part of either the plaintiff or defendant, and could not have occurred had both been free from fault, it is error to charge the law of accident as defined in Code 102-103. Morrow v. Southeastern Stages, 68 Ga. App. 142 (1) (22 S. E. 2d 336). Where, however, there is evidence to support the proposition that the injuries might have resulted although both the plaintiff and the defendant exercised due diligence, it is proper to charge on the law of accident although the defense is not specifically raised by the pleadings. Brown v. Mayor &c. of Athens, 47 Ga. App. 820 (3) (171 S. E. 730). Here, it was the contention of the defendant, as developed by the evidence, that an unforeseen and unusual event, i. e., the dog jumping at him, caused him to remove his eyes from the road long enough to slap it. Questions of diligence and negligence being ordinarily for the jury, this court cannot say as a matter of law that such conduct constituted negligence or lack of negligence, as it would depend entirely upon the circumstances of the case whether an emergency of such nature as to justify the defendant's conduct was caused by the action of the dog. A proper charge on the law of accident under such circumstances would not be erroneous.
(c) As to the plaintiff's contention that the law of accident should not have been charged because no statute of South Carolina was pleaded or proved relating to this issue, the following from Southern Ry. Co. v. Robertson, 7 Ga. App. 154 (4) (66 S. E. 535), is applicable: "Where one party offers a section of the code of another State as proof of the law of that State on a given subject, he is not required to introduce all cognate sections. If there are other sections applicable, the opposite party may offer them, but can not complain that his adversary has not done so." Accordingly, had the defendant here wished to offer the South Carolina law on the subject of "unavoidable accident," or to have proved that there was no law applicable on this subject in that State, he might have done so; but the burden was not upon the plaintiff to plead or prove any other South Carolina law than that which he desired to make out his case. Where the law of another State which is one of the original thirteen States is applicable, but such law is not pleaded or proved, it will be assumed that the law of the State where the tort occurred is the common law as declared and interpreted by the courts of this State. This rule was applied in Craven v. Brighton Mills, 87 Ga. App. 126 (73 S. E. 2d 248), to a tort action arising in South Carolina, on the issue of contributory negligence. Contributory negligence, of course, connotes negligence on the part of both parties, whereas accident, as here charged, connote negligence on the part of neither; and the same rule should apply in both instances. Accordingly, it is no ground of objection to the charge that the law of accident of force in South Carolina was not pleaded and proved.
3. Special ground 3 of the amended motion for new trial is abandoned. Special ground 4, contending that the provisions of Code 38-119, given in charge to the jury, were inapplicable and confused and misled the jury, is insufficient in that the assignment of error fails to show in what manner the charge was confusing and misleading, or to show any resulting injury to the movant, and shows no reversible error. Veal v. Barber, 197 Ga. 555 (2) (30 S. E. 2d 252).
4. In special ground 5 error is assigned on the following portion of the charge: "Now, gentlemen, there are certain principles of law which the court will give you in charge as applicable to this case as embodied in the statutes of South Carolina . . . Now, gentlemen, that constitutes all of the law which the court will give you under the South Carolina statutes. You are to apply that law and see whether it is applicable under the facts of this 'case." It is contended that this charge gave the jury an illegal option as to whether to apply the South Carolina law or not. It is obvious that the court meant simply to instruct the jury that they should apply the law as given to the facts of this case, and, since a reversal is demanded on other grounds, it is unnecessary to decide whether the charge as given was in fact confusing or misleading to the jury.
The trial court erred in denying the motion for new trial.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.
Earle Norman, contra.
Kenneth E. Goolsby, Jack D. Evans, for plaintiff in error.
DECIDED OCTOBER 23, 1953.
Saturday May 23 04:16 EDT


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