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LUCAS v. MIXON, by Next Friend, et al.
Action for damages. Chatham Superior Court. Before Judge Harrison.
JORDAN, Presiding Judge.
The trial judge properly overruled the defendant's motions for summary judgment where the evidence adduced in support of the motions did not negate and eliminate any controlling issue made by the pleadings. In the absence of such conclusive evidence the plaintiffs were under no obligation to produce contradictory evidence to preserve for jury consideration issues appearing from the pleadings.
Rebecca M. Mixon and Deborah L. Mixon, minor sisters, filed separate petitions in Chatham Superior Court through their father, as next friend, against Woodrow W. Lucas, seeking recovery for personal injuries. Their cases were consolidated in the trial court.
The plaintiffs allegedly sustained their injuries as the result of a collision involving a passenger automobile driven by Jack Lawrence Munn, the defendant's stepson, in which they were riding as guest passengers. Munn was killed as a result of the collision. Lucas allegedly provided the vehicle for family use, and Munn was allegedly operating the vehicle with the knowledge and express or implied consent of the stepfather. Their amended petitions alleged gross negligence by Munn in operating the vehicle at an unsafe speed under existing conditions, rain, wet and slippery pavement, smog and fog, and in failing to exercise due care, in violation of Code Ann. 68-1626(a); in failing to maintain control of the vehicle; in failing to maintain a proper lookout while attempting to pass a vehicle proceeding in the same direction, when he knew or could have known, by exercising slight care, the hazardous situation created by other traffic; and in operating the vehicle in utter disregard of the safety of his passengers.
In answer the defendant denied substantially all of the material allegations of the petition, and affirmatively pleaded that Munn was gratuitously transporting the plaintiffs as an accommodation at the request of their mother and without his knowledge or consent. He did admit ownership of the vehicle driven by Munn, and that the plaintiffs sustained injuries as a result of the collision.
The defendant took depositions from both plaintiffs. Rebecca Mixon testified, among other things, that on November 24, 1964, she was attending high school in Savannah. Having been sick the previous week and desiring to go home early after taking an examination, she went to the infirmary. While there she received instructions which she understood were from her mother, pursuant to a telephone conversation between a nurse and her in other, to wait at the school for her mother. She walked outside and Munn was there. He told her he had received instructions from her mother to provide transportation, and she got in the vehicle and sat down on the right-hand side next to her sister who sat in the middle. After leaving school she remembered a stop for her sister to get something to eat, but recalled nothing that occurred between that time and about eleven days later, when she was in a hospital.
Deborah Mixon testified, among other things, that she was free to leave school at noon, and that her mother was supposed to meet her and provide transportation to her place of work. When she went outside the building Munn was waiting for her, and explained that her mother was busy and that her mother had asked him to provide transportation. There was nothing unusual about his driving before they stopped for her to get some lunch. It had been raining most of the week, the weather was overcast, and the streets were wet, but it was not raining at this time. After she had lunch, she and her sister, with Munn driving, proceeded toward their destination. She did not know the exact speed of the vehicle, but she considered it to be too fast for the wet pavement and asked Munn to drive slower, and he complied with her request. After making a turn he speeded up again, and she asked him to slow down or to let her and her sister get out. She was certain that his speed about this time was in excess of the 35 m.p.h. limit. Shortly thereafter, after overtaking two vehicles, she remembered Munn Saying, "Oh, no" and she looked up and saw a truck coming head-on. She was not sure whether their vehicle had returned to the right lane in their direction of travel, and she did not know in which lane the impact took place.
The defendant moved for summary judgment in each case, and appeals from the order and judgment of the trial court overruling his motions.
The defendant contends, as the appellant before this court, that by reason of the testimony of the plaintiffs obtained by deposition at his request, he has pierced and disproved the allegations of each complaint charging him with liability under the family-purpose doctrine, and that as a matter of law the facts of the occurrence show that the stepson was not guilty of gross negligence. These contentions are without merit.
"A primary purpose of the summary judgment procedure is to allow a party to pierce the allegations of the pleadings and show the truth to the court and receive judgment where there is no genuine issue of material fact, although an issue may be raised by the pleadings." Scales v. Peevy, 103 Ga. App. 42 (3) (118 SE2d 193). "On motion for summary judgment, where the petition and the answer construed together present an issue as to a material fact, and this issue is not conclusively eliminated by uncontradicted testimony offered at the hearing, the issue remains in the case and a judgment granting the motion must be reversed." Sanders v. Alpha Gamma Alumni Chapter of the Delta Sigma Phi Fraternity, 106 Ga. App. 137 (126 SE2d 545). "Unlike the rule on general demurrer, the petition where the defendant moves for a summary judgment is to be construed liberally in favor of the complainant." Sanders, supra, at p. 140.
Viewing the petitions in the light of the rule of liberal construction recognized. In the Sanders case, each of the plaintiffs shows a right of recovery under the family-purpose doctrine for injuries received as the result of the gross negligence of the defendant's stepson. In view of the denial of these material allegations by the defendant, the pleadings create issues which the plaintiffs must eventually prove in order to establish the defendant's liability.
Unlike the Scales case, however, where the defendant, as the movant for summary judgment, produced uncontradicted evidence to show as a matter of law that he was not liable under the family-purpose doctrine, the defendant in the present case relies on testimony by the plaintiffs which does not disprove the alleged authorized use of the vehicle for a family purpose by the defendant's stepson at the time of the collision, and falls far short of showing the absence of gross negligence on the part of defendant's stepson.
In order to sustain the contentions of the movant the record would have to demonstrate conclusively, through the plaintiffs' uncontradicted testimony or by other means, that in truth and as a matter of law the vehicle was not being used for a family purpose or that the defendant's stepson was not guilty of any gross negligence as the proximate cause of the collision. See Sanders, supra. In either event he would have eliminated adversely to the plaintiffs a controlling issue, in which case the plaintiff would be required to produce contradictory evidence to preserve the issue as a jury question, or else suffer summary judgment.
Under the circumstances here shown the trial judge properly overruled the notions.
Cowan, Zeigler, Downing & McAleer, Richard T. Cowan, George N. P. Pahno, for appellees.
Richardson, Doremus & Karsman, W. Ward Newton, Stanley Karsman, for appellant.
Friday May 22 19:28 EDT

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