1. The Georgia death statute does not authorize a recovery by a guest from his host because of the failure of the host to exercise ordinary care. The court did not err in sustaining the general demurrer to count three.
2. Count one was predicated on the ordinary negligence of the defendant, in that he was charged directly with negligence in furnishing an automobile with slick tires to an incompetent and inexperienced driver, and was not predicated on the theory that the defendant's son was the agent of the defendant under the family-car doctrine, and that the host and guest relationship existed. The court did not err in overruling the general demurrer to count one.
3. It is not necessary to rule on various assignments of error involving the charges on count one.
4. The court erred in defining gross negligence as the entire absence of care. Cases holding to the contrary are overruled.
Mrs. Laura J. Caskey sued E. H. Underwood under the wrongful death statute to recover damages for the death of her unmarried minor son, Grandison Marion Caskey, III, who allegedly died as the result of injuries sustained while riding as a guest of the defendant's minor son. The action was brought in three counts. Count one sought recovery on account of the ordinary negligence of the defendant, charged directly against the defendant by reason of his turning over the automobile equipped with slick tires to an inexperienced and incompetent driver. Count two sought recovery on account of the gross negligence of the defendant's minor son under the family-car doctrine, which count charged liability on the part of the defendant under the theory of respondeat superior. Count three sought recovery on account of the negligence of the defendant's minor son under the theories of family-car doctrine and respondeat superior, it being contended by the plaintiff that the guest rule does not apply to an action under the wrongful-death statute, and it being contended that the rule under that statute is the duty to exercise ordinary care on the part of the son of the defendant, the host on the occasion in question. The defendant demurred to counts one, two, and three of the petition. The court overruled the demurrers to counts one and two, and sustained the demurrers to count three and dismissed that count. The jury found for the defendant. The plaintiff's amended motion for new trial was denied. The plaintiff excepts here to the order sustaining the demurrers to count three, and to the denial of her motion for new trial. By cross-bill the defendant excepts to the overruling of the demurrers to count one and the failure to give a requested charge on count one.
1. The court did not err in sustaining the general demurrer to count three. The contentions of the plaintiff in error are: that the death statute creates a new statutory cause of action unknown to the common law and independent of common-law concepts of liability; that the statute prescribes who may recover, the circumstances under which recovery may be had, and the amount which may be recovered; that the words "other negligence" in Code 105-1301 mean ordinary negligence; and that the "guest rule" with its requirement of gross negligence in order to impose liability, being a rule of common law, has no application in a case where death results to the guest and an action is brought under the death statute. We agree with the plaintiff in error that the death statute affords a new right of action and is not a provision for a survival of the decedent's cause of action. Thompson v. Watson, 186 Ga. 396 (197 S. E. 774, 117 A. L. R. 484), and cases cited; "Actions for Wrongful Death in Georgia," Charles J. Hilkey, 9 Georgia Bar Journal, 368. In addition to various reasons given as to why the right of action is not a survival of a decedent's cause of action one other might be added, and that is that an individual can have no cause of action for his own death. However, this new right of action (Code 105-1307; Ga. L. 1887, pp. 43, 45) is founded on the premise that the deceased would have been entitled to an action against the wrongdoer if death had not ensued, based on the breach of a duty owed to the deceased at the time of the injury. The original statute included such a provision. Cobb's Digest, p. 476. This provision was omitted from the Code of 1863 and subsequent Codes, but the general rule reads this requirement into the statutes. 16 Am. Jur. 61, 82. Georgia recognizes this requirement. Berry v. Northeastern Railroad, 72 Ga. 137 (1); Thompson v. Watson, supra. It follows that the basis of the cause of action, even though it is a new one, is the violation of a duty owed by the wrongdoer to the deceased. Atlantic, Valdosta & Western R. Co. v. McDilda, 125 Ga. 468 (54 S. E. 140). The specific question for decision just here is what is the duty the violation of which gives rise to the cause of action. The plaintiff in error contends that the death statute provides that this duty is that of ordinary care, and she cites as authority W. & A. R. Co. v. Michael, 175 Ga. 1 (165 S. E. 37). In that case the Supreme Court stated (at page 10): "The language 'other negligence' . . . embraces a homicide resulting from any negligence other than criminal negligence, and includes a homicide resulting from simple or ordinary negligence." This is not a ruling that the statute authorizes actions merely for criminal or ordinary negligence. We think the proper construction of the statute is that it gives a right of action for damages for any negligence which was actionable at common law. The act did not undertake to state or define what "other negligence" meant. The common-law rule governing the facts alleged in count three, the duty of host to guest in an automobile is that of slight care. Slaton v. Hall, 168 Ga. 710 (148 S. E. 741, 73 A. L. R. 891). Attack is made on the rule as approved in the Slaton case, and the writer, speaking for himself alone, seriously doubts
the correctness and soundness of the rule, but this court is powerless to change it. For the origin of the rule, see the cases cited in Slaton v. Hall, supra, and in Lee v. Lott, 50 Ga. App. 39, 42 (177 S. E. 92). It thus appears that the death statute does not provide for an action based on ordinary negligence in a guest case, and the court correctly sustained the general demurrer to the third count.
2. The court did not err in overruling the general demurrer to count one, which sought recovery on account of negligence charged directly to the defendant in that he allegedly turned over an automobile with slick tires to an incompetent and inexperienced driver. The only point argued is that the law required only slight care on the part of the host, and required gross negligence on the part of the host to show liability. As stated before, this count was based on negligence charged directly to the defendant and not to him through his son as agent under the family-car doctrine. Since there was no allegation of agency under the family-car doctrine, and the allegations of count one did net show that the deceased occupied the relationship of a guest of the defendant and his son, the allegation of the duty to exercise ordinary care was appropriate, and the court did not err in overruling the general demurrer to count one.
3. There are exceptions to the charge of the court relative to the first count, involving references to gross negligence and a refusal to give a requested charge on the subject. It is not necessary to consider these assignments of error for the reason that, in view of the admission in judicio that the defendant's son was operating the automobile as the defendant's agent under the family-car doctrine, the deceased was a guest of the defendant under the law and facts, and the plaintiff was entitled to a recovery, if at all, only under count two which charged gross negligence. Under the facts and admissions, the first count should not have been submitted to the jury. If on another trial the admissions are the same, and the facts not materially different, the alleged errors in the charge complained of will not likely recur.
4. Ground 7 of the amended motion for new trial assigns error on that part of the trial court's charge including in the definition of gross negligence "the entire absence of care," it being contended that this placed a greater burden on the plaintiff than he was required by law to carry in order to be entitled to recover. This exact question was presented to this court in Whitfield v. Wheeler, 76 Ga. App. 857 (47 S. E. 2d 658). In that case it was held, on authority of Harris v. Reid, 30 Ga. App. 187 (2) (117 S. E. 256), that the charge was proper. The trial court here, no doubt following those two cases, gave the same charge; and, if it is error, it is certainly no fault of the trial judge. The fault rather must be confined to this court, both in quoting with approval from "Words and Phrases" that part of the definition of gross negligence here complained of in Harris v. Reid, supra, and the latter decision of Whitfield v. Wheeler, supra, based thereon. The Code Commission incorporated a part of the decision dealing with gross negligence in Harris v. Reid, supra, in the Georgia Code of 1933, but did not include therein "the entire absence of care" which was included in that case as a part of the definition of gross negligence. It is well settled in this State that there is a distinction between gross negligence and wanton misconduct. Southern Ry. Co. v. Davis, 132 Ga. 812, 815, 818 (65 S. E. 131); Southern Ry. Co. v. O'Bryan, 119 Ga. 147 (45 S. E. 1000). It is also well settled that one may fail to exercise the whole degree of slight diligence and still be in the exercise of some care. Hennon v. Hardin, 78 Ga. App. 81 (50 S. E. 2d 236). Where this condition exists, gross negligence is present. We are of the opinion that the entire absence of care would generally, if not always, result in wanton misconduct: also, that charging the entire absence of care as a part of the definition of gross negligence would very likely confuse the jury and cause them to assume that, before one could be guilty of gross negligence, there must be an entire absence of care. It is error for a trial court to use the words "entire absence of care" in defining gross negligence when the use of such expression can be interpreted as meaning that, in order to prove gross negligence, an entire absence of care must be proved. See Lee v. Lott, supra; Southern Ry. Co. v. Kelley, 52 Ga. App. 137 (182 S. E. 631), and cases cited. Of course, a petition based on a required degree of culpability less than the entire absence of care would be supported by evidence showing that the defendant failed to exercise the degree of care required by the failure to exercise any degree of care whatever.
Accordingly, those parts of Harris v. Reid, supra, and Whit- field v. Wheeler, supra, approving "the entire absence of care" as a part of the definition of gross negligence, are expressly overruled. An abstract charge on the definition of gross negligence is sufficient and proper where it is confined to the applicable portions of Code 105-203.
For the reasons set out in this division of the opinion, the trial court erred in denying the motion for new trial as amended.
ON MOTION FOR REHEARING.
Plaintiff in error contends that the ordinary-care rule applies as to the duties owed by the owner of an automobile to the guest of an agent of the owner exclusive of the negligence of the agent of the owner. In other words, the contention is that, if the duty of the owner to the agent's guest is direct, ordinary care is required, and that, where the duty is indirect (through an agent), slight care only is required. We know of no such distinction in this State. As we understand the law, a guest of the owner's agent is regarded in law as the owner's guest, and the owner's duty to the guest is slight care, whether the duty is direct or indirect through another person. The ruling in Barks v. Green, 85 Ga. App. 327
(69 S. E. 2d 686), is not authority for a contrary holding. In that case the plaintiff was not a guest of the defendant or a guest of an agent of the defendant. The quotation from Corpus Juris in that case, that "This duty and liability applies as to a guest in the owner's vehicle as well as to a stranger on the highway," had its source in Alabama and North Carolina cases, and in those States the rule of ordinary care obtains in host-guest cases and not the rule of slight care as in Georgia. Even if the opinion in Burks v. Green could be construed to be a ruling such as is contended for by plaintiff in error, the ruling was obiter.