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LEWIS v. WILSON, by Next Friend.
Action for damages. Chatham Superior Court. Before Judge Harrison.
Where suit was brought against two defendants, one a resident of the county and the other a nonresident, and the petition failed to set out a cause of action against the resident defendant, a general demurrer of the nonresident defendant on the ground that the court lacked jurisdiction as to him should have been sustained.
Alfonso Wilson, a minor, by his mother as next friend, brought suit in Chatham Superior Court against Willie Bryon, a resident of Chatham County, and Wilma Lewis, a resident of Screven County, on the theory that they were joint tortfeasors, alleging: Plaintiff was riding as a guest in the back seat of an automobile driven by Willie Bryon in a southerly direction along State Highway No. 24 some four miles north of Sylvania; they crested a hill approximately 100 feet before coming to the intersection with Highway No. 301, and the driver, Bryon, had a clear view ahead enabling him to see approaching from the south a pickup truck driven by Billy Lewis, a minor son of the defendant Wilma Lewis, across the Jacksonboro bridge located about 500 feet south of the intersection; that the truck was weaving from one side of the highway to the other at a reckless and dangerous rate of speed; that Bryon, failing to observe a yield sign as he entered the intersection with Highway No. 301, continued on across the intersection and just after crossing drove his car off onto the shoulder of the road and brought it to a stop approximately a foot off the pavement "and there waited without further action to permit the aforesaid Billy Lewis to bring his pickup truck under control or to pass," that "Billy Lewis did not pass but as he approached the parked vehicle in which petitioner was riding as a guest, completely lost control of the aforesaid pickup and the same ran off the easterly edge of Highway No. 301 onto the shoulder thereof, and traveled a distance of 69 feet on the shoulder in a northerly direction and skidded across Highway No. 301 in a westerly direction at the point where said highway merges with State Highway No. 24 and traveled a distance of approximately 48 feet to collide with the left side of the parked vehicle operated by the defendant, Willie Bryon, and occupied by petitioner" as a result of which plaintiff suffered injuries. He alleged that the pickup truck was a family purpose vehicle, that the minor son, Billy Lewis, was living in the home with his father and was using the truck as his father's agent.
Elizabeth Grant, another passenger in the Bryon car, brought a similar action against the same defendants, with the same allegations as to the happening of the accident and with the same allegations as to negligence.
The allegations of negligence as to Willie Bryon, the resident defendant who was the host driver, were that he was grossly negligent in (a) proceeding into the intersection of the two highways at a time when it was apparent that a vehicle was approaching in an uncontrolled manner and at a dangerous rate of speed, (b) in violating a yield sign facing oncoming traffic proceeding in a southerly direction at the intersection, (c) in driving into the intersection from a position of relative safety in reckless disregard of the consequences and in the face of a rapidly advancing vehicle that was obviously out of control.
App.) APRIL TERM, 1965. 669
The resident defendant filed no pleadings of any kind, but Wilma Lewis, the nonresident defendant demurred generally to the petition, and upon the grounds that the petition failed to show that the resident defendant was guilty of gross negligence, or of any negligence, in the operation of his automobile, or that the defendants were joint tortfeasors, and thus the court was without jurisdiction as to him.
It is well settled that where a nonresident defendant is joined with a resident defendant in an action presenting no cause of action against the resident defendant, the court has no jurisdiction of the action against the nonresident and a demurrer upon that ground should be sustained. Richards & Associates, Inc. v. Studstill, 212 Ga. 375 (93 SE2d 3).
There can be no recovery by a guest against the host driver of an automobile unless it appears that the host was guilty of gross negligence. Epps v. Parrish, 26 Ga. App. 399 (106 SE 297); Tucker v. Andrews, 51 Ga. App. 841, 842 (181 SE 673), and citations.
The first allegation of negligence against him falls far short of it. Neither the intersection nor the entering into it had anything whatever to do with the collision. The host driver was proceeding in the manner in which he had every right to do, entering the intersection when the approaching vehicle was a considerable distance away, and proceeded to drive off the road onto the shoulder and stop before the driver of the pickup truck so lost control of it as to leave the road to the right for 69 feet, and then turn or skid left for 48 feet into the car. The yield sign which faced the host driver as he approached the intersection was not for the benefit of those who traveled in an opposite direction along the highway, but for traffic moving in the same direction along the intersecting HighWay 301. Failure to observe the sign had no causal connection with the accident that later happened at a point beyond the intersection. Nor do we think the allegation that the host driver proceeded into the intersection from a position of relative safety in the face of the advancing pickup truck amounts to an allegation of gross negligence, particularly in view of the other allegations of the petition that upon getting onto Highway 301 he pulled over, off the paved portion of the road onto the shoulder, stopped, parked the car and there awaited the passing of the oncoming vehicle. When the driver has gone to the precaution of getting completely off the road, onto the shoulder, bringing his vehicle to a stop, and awaits the coming of one approaching in what appears to be an unsafe manner it seems to us that he has exercised every care that could be expected of him. Certainly he has committed no act of gross negligence in doing that. See Stroud v. Doolittle, 213 Ga. 32 (96 SE2d 876); Seaboard & Roanoke R. Co. v. Cauthen & Turner, 115 Ga. 422 (41 SE 653); Southern R. Co. v. Davis, 132 Ga. 812 (65 SE 131); Peavy v. Peavy, 36 Ga. App. 202 (136 SE 96); Luxenburg v. Aycock, 41 Ga. App. 722 (154 SE 460); Tucker v. Andrews, 51 Ga. App. 841, supra; and Conklin v. Jones, 95 Ga. App. 677 (98 SE2d 638).
Moreover, it is alleged that it was after the host driver had driven off the road and stopped that the driver of the pickup truck, as he approached the parked vehicle, lost control, ran off the road and eventually struck the parked vehicle. Prior to the losing of control it would certainly appear that the parked vehicle was in a safe position.
The petition must be construed against the pleader when considering it on demurrer. Ford Motor Co. v. Williams, 219 Ga. 505 (134 SE2d 32). Consequently, it fails to allege any gross negligence on the part of the host driver.
"It is true that questions of negligence and diligence, even of gross negligence and slight diligence, usually are matters to be determined by the jury except in plain and indisputable cases in which the court may solve the question as a matter of law." Conklin v. Jones, 95 Ga. App. 677, 683, supra. We conclude, as did the court in Conklin, as well as some of the others cited above, that the petition here fails to allege any facts upon which it could be concluded that the resident defendant, Bryon, was guilty of gross negligence.
The defendants were not joint tortfeasors. It is unnecessary to consider whether the petition set out a cause of action against the nonresident defendant, for the court had no jurisdiction of the action as to him and should have sustained the demurrers in both cases.
Donald E. Austin, contra.
W. Colbert Hawkins, for plaintiff in error.
Friday May 22 21:03 EDT

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