1. It is not necessary to move for a directed verdict in order to raise the question by motion for new trial that the verdict is "without evidence to support it."
2. A position assumed by a plaintiff based upon facts contrary to those appearing in the record can not be sustained.
Lawrence Hamby sued Thomas G. Hamby for damages in the Superior Court of Murray County. The petition as finally amended alleged substantially the following facts: The defendant has damaged the plaintiff in a named sum for which recovery was prayed. On May 5, 1957, the plaintiff was riding as a guest passenger in the defendant's automobile. The defendant was driving in a northerly direction in the City of Cleveland, Ohio, along West 65th Street which is a public street running in a generally northern and southern direction and intersects at right angles with Detroit Avenue which is also a public street. At the junction of the aforementioned streets is a business district of Cleveland and the speed on such streets is governed by Section 9.1306 of the Traffic Code of the City of Cleveland, reading in part: "Twenty-five (25) miles per hour in all other portions of the city, except on state routes and on through highways, outside business districts." The traffic along the aforenamed streets is controlled at the intersection by what is generally known as an automatic signal light. The defendant was driving his automobile along 65th Street, approaching the intersection, and at that time the traffic light was red indicating that traffic moving in a northerly direction should stop at the intersection. Immediately in front of the defendant's automobile was another automobile being operated by an unknown person, who in obedience to the traffic light stopped his automobile, and the defendant drove his automobile into the rear of that automobile, causing the defendant's automobile to veer and skid to his left across the center line of the street and immediately in front of and into an approaching truck which was traveling in a southerly direction on 65th Street. The defendant at the time was operating his automobile at the unlawful speed of 35 to 40 miles per hour, and too closely behind the automobile that preceded him, in violation of the law. The defendant at the time intended turning his automobile to the left and had turned it slightly to the left, but the defendant was not keeping a lookout ahead in the direction in which he was operating his automobile and drove it into the back of a standing automobile. West 65th Street is a much used and traveled street in Cleveland, and driving an automobile on that street under the circumstances alleged constituted "wanton negligence and misconduct" on the defendant's part. In operating his automobile at the rate of speed, time, and place, and not more than ten feet behind another automobile amounted to wanton negligence and misconduct on the defendant's part, and a violation of the aforementioned city ordinance. Immediately following the collision with the truck, the defendant was charged with the offense of reckless driving, and to that charge the defendant entered his plea in the Cleveland Muncipal Court, being number 605879. Reckless driving is defined in Code Section 9.1304 of the Traffic Code of the City of Cleveland as follows: "No person shall operate a vehicle, trackless trolley or street car in and upon the streets without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys and street cars and so as to endanger the life, limb or property of any persons while in the lawful use of the streets." The plaintiff's injuries were caused solely by the defendant's wanton negligence and misconduct which constituted gross negligence. The plaintiff sustained certain injuries, incurred expenses, and lost time of a stated value on account of the collision. The petitioner's loss of earning capacity and his injuries are permanent. The petition further averred that the collision occurred in the Stage of Ohio and the laws of that State must be applied in determining the defendant's liability. Code 4515.02 of the Code of Ohio, which is the applicable statute, reads: "The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle."
The defendant, Thomas G. Hamby, filed a general demurrer to the petition but the record discloses that no order was taken on the demurrer and the case went to trial on its merits.
In his answer the defendant admitted that he was a resident of Murray County, Georgia; that on May 5, 1957, the plaintiff was riding in his automobile as an invited guest; that he, the defendant, at the time and place alleged in the petition, was driving his automobile along the street and in the direction alleged in the petition; that traffic along the named street was controlled by an automatic signal light; that at the time and place in question another automobile was being operated immediately in front of the defendant's automobile by an unknown person; that Section 4515.02 of the Revised Code of the State of Ohio pertaining to guest passengers in motor vehicles was in full force and effect at the time and place in question; and that the law of Ohio governs the plaintiff's rights as a guest passenger. The defendant denied all other allegations of the petition and specifically alleged that he was not guilty of wilful and wanton misconduct and that he was not guilty of any acts authorizing a recovery against him under the laws of the State of Ohio.
There was evidence of the injuries sustained by the plaintiff, his pain and suffering, and, also of his earning capacity. The only evidence of the defendant's liability was given by the plaintiff himself.
That is both a business section and a residential section . . . At that time I was riding in an automobile being driven by my son . . . We were going to my room at the hotel from his house. In the direction in which we were going to my room we would have had to turn to the left at the intersection. We were on 65th Street at the time . . . I had spent the night with my son and we had a friend in Bay City Hospital that we wanted to go see, he was from this town here, he had been in an accident and I told him if he could carry me over to my room I would change clothes and we would go out and see the man, and we was driving along, when I am riding with another man I don't pay too much attention to everything going on, and after we turned down 65th why we made a stop sign and in that next block would be the hotel where I was staying, and about the first thing I knew he was hitting everything around, and the next thing I remember I woke up in the hospital that evening about five or six o'clock. As to approximately how many blocks we had driven on 65th Street; well, I would say four or five blocks. As to whether or not I can tell the jury approximately how fast the speed was at the time the wreck happened; well, not exactly, for I wasn't looking at the speedometer, but you don't drive too slow there anyway, I would say we was driving between thirty and forty, may be forty-five miles per hour. As to whether or not I saw a car in front of us; well, yes, when I looked up we was hitting this car on the right, and the next thing we was hitting this gas wagon. The car that we hit on the right was going in the same direction that we were going. As to what part of the car we hit; well, the best I remember it was the left rear fender, I couldn't say for sure. As to the direction we went in, well from the way I got hurt we must have went to the left. As to whether or not I know; well, no, the only thing I know it must have caved in the dash on the Ford and broke my leg. As to what direction the truck was going that hit our car; well, he was driving off of Detroit Avenue into 65th Street. As to whether or not he was coming the same direction that I was going; well, no he turned off of Detroit Avenue meeting us . . . We were meeting at the time. When we went into the back of the car in front of us, as to where we went from there; well, the next thing I knew we was hitting that gas truck in the face. Yes, the street was marked off with traffic lines. When we hit this car, as to whether or not we were to the left or right of the traffic line in the direction in which we were going; well, we were on the left. As we went along 65th Street, as to how close behind this car my son was driving; well, like I said, I wasn't paying too much attention, but we was traveling pretty close, I would say from ten to fifteen feet. Yes, we were approaching a traffic light at the intersection of Detroit Avenue and 65th Street. As to what happened to the traffic light as we approached it; well, I couldn't say, I just don't know . . . The statement which you show me [speaking on cross-examination to the defendant's counsel] that is my signature. As to whether or not I said this morning on examination by my attorney that people don't drive too slow there anyway; well, they drive more rapid there in Cleveland, Ohio, than they do where I am at now. As to whether I told my attorney this morning that they don't drive too slow up there; well, no, they don't drive too slow up there. As to about what was the speed of the line of traffic that my son was driving in on that occasion; well, I couldn't say exactly, you would have to be looking at the speedometer and that I was not doing. As to whether or not I did estimate it to Mr. Maddox [the plaintiff's attorney] this morning; well, that is an estimate. My estimate now is the same as this morning. As to what it was this morning; well, I would say between twenty-five and forty miles per hour. As to what my estimate of the speed is based on; well, I don't see how a man could be hurt as bad as he was if there wasn't something making some pretty good speed, although there was another vehicle involved which would double the speed [force of impact would be increased?] at the collision. As to how fast the other vehicle was going; well, I couldn't say that either. As to whether or not my estimate is not reliable, and I would have to know the speed of the other vehicle in order to make my estimate reliable; well, you would have to know the speed of both. No, sir, I don't know . . . [Recross-examination] I couldn't say whether I read the statement before I signed it; I was hurt pretty had. As to whether or not I did say that what I said in
the statement was true; well, if I said it was true -- as to whether or not it is true to the best of my knowledge; well, yes . . . As to whether or not there is anything in it that is not so, well, there is some words and stuff in here that I can't make out, in order to make this clear, it will have to be read to me or copied off. The portion of the statement which reads 'May 16, 1957, 2:00 P. M., St. John's Hosp. My name is Lawrence Hamby, and I live at the Detroiter Hotel, I am married and my permanent address is with my wife and family in Georgia. I am fifty years old. On Sunday May 5, 1957, about 9:30 my son and myself left his house at 3206 W. 46th St. to go over to my house at the Detroiter to change clothes so we could go out to Bay Village Hospital to see a friend,' that is true, I made that statement to this man that was writing it. As to whether or not I made the statement 'we had been driving about fifteen to twenty minutes in Tom Hamby's 1950 Ford. We were traveling north on W. 65th St., going about twenty to thirty miles per hour,' well, about this speed business, I would have to be looking directly at that speedometer to say that would be correct, and I was not. At that time, to the best of my memory, as to whether or not I told the man that that was the speed; well, that I could not say. As to whether or not I don't recall whether I made that statement or not, twenty to thirty, well, I could not say. As to whether or not I now say that that is not true; well, I couldn't say that either. As to whether or not I made the statement 'the weather was clear and dry' well, that is correct. Yes, I made the statement 'the traffic conditions were average,' that is right. As to whether or not I made the statement 'Tom has always been a good, safe, courteous driver, he has not been drinking and he was driving at a normal rate of speed and had his car under control,' well, I couldn't say that I said that. No, I do not say that it is not so. Whether I said it or not, as to whether or not it is true; well, that statement was took from me there, I couldn't tell you how many days after this wreck, and I was hurt pretty bad in that wreck, and also he was too, I might not have read that statement clearly enough, for I was a pretty well boogered up man. If that is not true, as to what is wrong about it, the part that is not so; well, I couldn't say it is not so. As to whether or not the only thing I question is whether I said it that way; well, no, read that again. 'Tom has always been a good, safe, courteous driver, and he had not been drinking and he was driving at a normal rate of speed and had his car under control', well, I can remember very well about the non-drinking, but that other three or four words there I couldn't say about that. As to whether or not he was driving at a normal rate of speed; well, he had been up until, as I say, I wasn't watching the speedometer and I wasn't paying too much attention to the way the man was driving. As to whether or not he wasn't passing cars along there, but was in line of traffic; well, yes, he was driving in a line of traffic and there was cars on our right. Yes, he was staying on his side of the road as he was driving along. As to whether or not I made the statement 'I did not have to tell Tom to drive careful as he was careful'. . . Yes I made the statement 'Everything from then on following happened so fast that I couldn't verify anything,' Yes, I made the statement 'I do know we hit the left rear of this 1953 Ford driven by Theodore Kugarniels I am told, then we hit this gas truck coming around the corner from Detroit Avenue.' "
The jury returned a verdict for the plaintiff; the defendant moved for a new trial, based solely on the general grounds, the motion was denied, and the defendant excepted.
Whether this rule of practice should be adopted and applied by the Georgia courts is a novel question. In so far as we are able, by research, to ascertain, it has not previously been decided since the enactment of the Georgia statute covering judgments notwithstanding the verdict. Before the enactment of that statute the exact point was decided adversely to the plaintiff's contention in Townsend v. Rechsteiner, 195 Ga. 618 (2, 3) (24 S. E. 2d 776). Our Georgia statute, embodied in Code 70-202, provides without qualification that one of the grounds of a motion for new trial is that the verdict of a jury is found contrary to the evidence. In Southern Ry. Co. v. Adams, 14 Ga. App. 366 (2) (80 S. E. 902), the quoted provision is construed, "A motion for a new trial based solely upon the general grounds, that the verdict is contrary to law and evidence, raises only the question whether there was any evidence to authorize the verdict."
The statute covering judgments notwithstanding the verdict, contained in Code (Ann.) 110-113 is not, nor is any other law enacted since Code 70-202, in conflict with the latter statute. Watts v. Roberts, 93 Ga. App. 699
, 701 (4) (92 S. E. 2d 605).
2. The plaintiff stands upon the legal principle that where the petition is demurred to generally on the ground that it does not state a cause of action and the demurrer is overruled, if the plaintiff proves his case as alleged he is legally entitled to recover.
Neither the record nor the bill of exceptions, contains any allusion to a demurrer to the petition having been filed or ruled upon. The point apparently is made for the first time in the brief of counsel. In an effort to do complete justice, this court ordered the record of the demurrers and orders upon the same to be certified and transmitted by the clerk of the trial court as parts of the transcript of the record. The certificate of the clerk shows that general and special demurrers were filed, but there was no order entered on, or concerning them. Thus the principle of law relied upon by counsel for the plaintiff is inapplicable in the present case.
3. The plaintiff's right of recovery must, as conceded by the parties, be determined under the statutes and judicial precedents of Ohio, since the collision resulting in the plaintiff's injuries occurred there. The statute of Ohio which was pleaded requires that the host driver must be guilty of wanton misconduct in order for the guest passenger to recover. Section 4515.02 Ohio Revised Code Annotated states: "The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner, or person responsible for the operation of said motor vehicle." The courts of Ohio construe the code section liberally to give its last clause full effect. Miller v. Fairly, 141 Ohio St. 327 (48 N. E. 2d 217). So as held in the case of Vecchio v. Vecchio, 131 Ohio St. 59 (1 N. E. 2d 624), "In an action for damages for personal injury instituted by a guest against the operator of a motor vehicle, under favor . . . [of this section], such guest must plead facts that reveal on their face the element of willfulness or wantonness, else such pleading is demurrable." As stated, we are bound by the interpretation given the statute by the Ohio courts.
The principle of law that, " 'Where laws of a foreign State are pleaded as a basis of an action, the laws of that State are to be applied in determining the plaintiff's right to recover. The laws of a foreign jurisdiction are to be given the same construction by the courts applying the remedy as that given by its court of last resort,' is applicable to the case at bar. See also, in this connection, Ga., Fla. & Ala. Ry. Co. v. Sasser, 4 Ga. App. 276 (61 S. E. 505); Southern Ry. Co. v. Robertson, 7 Ga. App. 154 (66 S. E. 535); Hill v. Chattanooga Ry. & Light Co., 21 Ga. App. 104 (93 S. E. 1027); Southern Ry. Co. v. Harper, 32 Ga. App. 267 (123 S. E. 154)." Lee v. Lott, 50 Ga. App. 39, 43 (177 S. E. 92).
Wanton misconduct arises out of a tendency to perversity; while negligence arises from inadvertence or failure to exercise care. In the case of Akers v. Stirn, 136 Ohio St. 245 (25 N. E. 2d 286) it is held: "The difference between wanton misconduct and negligence is one of kind and not merely of degree." However it is frequently difficult to distinguish wantonness and carelessness. This is recognized in the case of Tighe v. Diamond, 82 Ohio App. 487 (82 N. E. 2d 99), where it is held that wantonness may be actual or constructive. " 'Wilful misconduct', may be of two kinds (a) actual and (b) constructive. (a) Actual 'wilful misconduct' is misconduct where there is intent to injure. (b) Constructive 'wilful misconduct' is conduct where the act causing the injury is intentional, but where there is no voluntary intent to cause injury; in this type of 'wilful misconduct', the execution of the wrongful intentional act must be accompanied by indifference to the safety of others after knowledge of their danger, or failure, after such knowledge, to use ordinary care to avoid injury to such others."
The solution of the question as to what constitutes wanton misconduct depends upon the facts of each case, and upon whether the tortfeasor, by the exercise of ordinary care, apprehends that his conduct will in reasonable probability cause injury to another.
As a matter of course, the defendant is not required under the Ohio law, as under Georgia law, to anticipate the danger of a situation until it becomes apparent to him, or in the exercise of ordinary care should have been observed. Ulrich v. Massie, 89 Ohio App. 362 (102 N. E. 2d 274).
This brings us to the consideration of the evidence in the case sub judice and the question as to whether the defendant's acts amounted to wanton misconduct. The case pleaded and the proof offered by the plaintiff attempted to base his right of recovery on the fact that the defendant was driving too fast in following another automobile to enable him to stop when that vehicle made a normal stop in obedience to an automatic traffic light. The speed was alleged to have been between 35 to 40 miles per hour, and the space between the defendant's automobile and the automobile in front of him was, according to the petition, ten to fifteen feet. The petition alleges that the speed at which the defendant was driving and the proximity of his automobile to the automobile he was following, prevented his stopping in time to prevent colliding with it. Thus the plaintiff's whole case depends upon whether the defendant knew or by the exercise of ordinary care should have known that following the automobile at such speed and at such proximity would probably result in the plaintiff's being injured.
It is somewhat doubtful whether, under the views expressed by the Ohio courts, the facts alleged, if proved, would be held to show wanton misconduct.
The briefs of counsel furnished factual instances in which the courts of Ohio have held that on apparently stronger proof than was adduced upon the trial of this case, guest passengers were held not entitled to recover. Johnson v. Gernon, 91 Ohio App. 529 (107 N. E. 2d 377); Koppelman v. Springer, 157 Ohio St. 117 (104 N. E. 2d 695); Vecchio v. Vecchio, 131 Ohio St. 59 (1 N. E. 2d 624).
We have perused many of the opinions of the Ohio courts to ascertain whether there were cases that dealt with the precise or similar situations shown by the evidence in this case. One of these is Murphy v. Snyder, 63 Ohio App. 423 (27 N. E. 2d 152) where we find this ruling: "A driver of a car, who, upon approaching an intersection of two state highways at a rate of speed between 55 and 60 miles an hour, observes a car to his right approaching the intersection, then proceeds to look at the baggage on his running board to see if it is secure and then at his wrist watch for the purpose of checking the correctness of his speedometer, fails to notice a traffic light at the intersection or make any observation of the highway on which he is traveling, and when his attention is called to the car approaching on the intersecting road, accelerates his car in such a manner as to pass in front of such approaching car and becomes involved in a collision with it, is, as a matter of law, not guilty of willful or wanton misconduct so as to be liable in damages for the death of a guest passenger in his automobile." Those cases closest to this case in point of fact are those in which the driver could not see the way ahead and heedlessly continued his course. The case of Hottel v. Read, 66 Ohio App. 323 (33 N. E. 2d 1011) is one in which the driver of an automobile, while operating the vehicle was confronted with a perilous situation due to his inability to stop on icy pavement behind a bus which had slowed preparatory to stopping. He collided with an automobile approaching from the opposite direction and injured his guest passenger. The court held he was negligent but that his conduct did not amount to wanton misconduct, a conclusion by which we are bound but not in accord.
In the case of Schulz v. Fible, 71 Ohio App. 353 (48 N. E. 2d 899), it was held that where one drove through a cloud of smoke and collided with the rear of another vehicle, obscured from his vision by the smoke, he was not guilty of wanton misconduct.
In numerous cases the courts of Ohio have held that speed alone does not authorize an imputation of wantonness to the driver. Among these are Clark v. Hiatt, 105 Ohio App. 402 (152 N. E. 2d 701); State v. Brookman, 52 Ohio Ops. 283 (112 N. E. 2d 416). See also 52 A. L. R. 2d 1356. Nor does the violation of traffic laws necessarily bring the driver's conduct within the statutory meaning of "wanton misconduct." McCoy v. Faulkenberg, 53 Ohio App. 98 (4 N. E. 2d 281). But if, arguendo, we assume the petition alleged a cause of action and imputed to the defendant wanton misconduct, the plaintiff's proof fell short of the allegations of the petition.
273); Wallace v. State, 55 Ga. App. 872, 875 (192 S. E. 81).
The reason given by the plaintiff as the basis for his estimate of the speed really furnished no foundation for his conclusion that the speed of the vehicle was 25 to 40 miles per hour. But, be that as it may, the plaintiff made the further observation that when two automobiles approached each other from opposite directions the speed of the two would have to be added together to ascertain their velocity when they met and finally concluded: "As to whether or not I said this morning on examination by my attorney that people don't drive too slow there anyway; well, they drive more rapid there in Cleveland, Ohio, than they do where I am at now. As to whether or not I told my attorney this morning that they don't drive too slow up there; well, no, they don't drive too slow there. As to about what speed of the line of traffic that my son was driving in on that occasion; well, I couldn't say exactly, you would have to be looking at the speedometer and that I was not doing. As to whether or not I did estimate it to Mr. Maddox this morning; well, that is an estimate. My estimate now is the same as this morning. As to what it was this morning; well, I would say between 25 and 40 miles an hour. As to what my estimate of the speed is based on; well, I don't see how a man could be hurt as bad as he was if there wasn't something making some pretty good speed, although there was another vehicle involved which would double the speed at the collision [increase the force of impact?] As to how fast the other vehicle was going; well, I couldn't say that either. As to whether or not my estimate is not reliable, and I would have to know the speed of the other vehicle in order to make my estimate reliable; well, you would have to know the speed of both. No, sir, I don't know." So the plaintiff's proof failed to show that before the collision the defendant was driving at any specific rate of speed. It is true the defendant did give as his opinion that the defendant followed within 10 to 15 feet of the automobile proceeding on the street ahead of him; for what distance he followed the car, the evidence is silent. It is obvious that to follow too closely along a city street, even within 10 or 15 feet, could in some circumstances be prudent and ordinarily would not be to proceed into danger so apparent and grave that the driver of the following motor vehicle must be conscious, or by the exercise of ordinary care, ought to know would probably cause a collision resulting in injury to his guest.
If any competent evidence had been furnished by the plaintiff's testimony from which the conclusion could have been drawn that the defendant was chargeable with wanton misconduct it would be necessary that the evidence show facts from which it could be legitimately inferred that such conduct of the defendant proximately caused the plaintiff's injuries. If it be considered, for the purpose of discussion, that the defendant did drive too close to the automobile with which he collided, the question remains as to whether his conduct caused the collision and the consequent injuries sustained by the plaintiff. The plaintiff testified that he was not paying attention and that he did not know how the collision occurred.
The wreck could have been the fault of another or an occurrence that a reasonable, prudent person would not have foreseen, or from negligence, and not wantonness, for all that is shown by the evidence. If the witness, as he admitted, did not know how the unfortunate incident came to pass, the court and jury could know no more, in the absence of other evidence.
The plaintiff merely outlined circumstances, gave a general, though complete, account of the circumstances and description of the locus of the collision. He related that the automobile ahead was moving along 65th Street approaching an automatic signal light, but the witness could not say whether the light signal was a green go or a red stop signal. The witness further gave evidence that a truck was turning into 65th Street from Detroit Avenue; that the defendant's car struck the left fender of the car in front and careened into the pathway of the oncoming truck approaching from Detroit Avenue. These circumstances, at best, preponderated to the theory that the defendant was in some degree negligent in not avoiding the collision with the automobile in front of him, but do not preponderate to the theory that the truck turning in from Detroit Avenue, and with which the defendant collided, had the right of way over the defendant's automobile, or that the defendant should have anticipated that it would make the turn into 65th Street and into the lane in which it proceeded to the point of contact. In short, the plaintiff's proof did not show that the misconduct of the defendant was the proximate cause of the wreck and his resultant injuries. The trial court consequently erred in denying the motion for a new trial, based solely on the general grounds.
FELTON, Chief Judge, concurring specially.
I concur in the judgment and the opinion except the ruling in division 2 of the opinion. There is no exception to the failure of the court to rule on the demurrers which results in the legal consequence of an undemurred-to petition. See Southern Bell Telephone & Telegraph Co. v. Brackin, 99 Ga. App. 77
(107 S. E. 2d 864).