YOUNG v. REESE et al. (two cases).
Action for damages. McDuffie Superior Court. Before Judge Stevens.
QUILLIAN, Judge.
1. Whether tested by a general demurrer or a motion to dismiss, the facts alleged regarding the defendants' gross negligence were sufficient to present a jury question.
2. Unless the trial judge so certifies, this court cannot review the denial of a motion for summary judgment.
Mrs. Mary M. Reese filed suit in the McDuffie Superior Court against James F. Young, Jr., and James F. Young, III, seeking to recover for the wrongful death of her son, Jimmy Dewey Reese, who died from injuries he sustained in a motor vehicle collision. The appeals in Case 43649 and in Case 43650 are from the same judgment and the issues in both cases, in all material respects, are identical. Thus, for purposes of simplicity in the recitation of the facts we shall treat this as one appeal.
The petition as amended alleged that on February 16, 1966, James F. Young, III, was driving a 1956 Chevrolet automobile which was owned by James F. Young, Jr., and which had been bought for the pleasure, comfort and convenience of his family, including his son, James F. Young, III, and the car was being operated as such at the time of the collision and was a "family-purpose" car; that James F. Young, III, was a member of the household of James F. Young, Jr., being his minor son, and residing with him; that Jimmy Dewey Reese, plaintiff's son, was riding as a passenger in the automobile being driven by James F. Young, III, over the road which leads from Thomson to Wrightsboro, a paved road known as the Wrightsboro Road, at a point approximately 2.7 miles west of Thomson; that the road is narrow and winding, the paved portion not being more than 19 feet in width and there being many curves in the road; that the car was equipped with deficient tires and brakes; that the weather conditions were such that cars could not be operated on the road, in safety, at higher speeds than 40 miles per hour, since it was raining and the black-top pavement was wet and slick, affording little traction for stopping a car or for holding it safely and securely in position while traveling around curves at higher speeds than 40 miles per hour; that nevertheless, James F. Young, III, drove the car at a high and reckless rate of speed of approximately 70 miles per hour or more over the paved road and around a curve while it was raining, and lost control by driving too far to the right-hand side and then suddenly and quickly pulled to the left and continued to drive forward at unabated speed while the car was out of control, crossing the center of the road and going to the left side, and skidding approximately 64 feet on the pavement, striking the bank with the left side of said car, which turned the car around backwards, which car was running so fast that it continued thereafter to travel approximately 154 feet on the shoulder and ditch before finally coming to rest; that, as a result of the car striking the bank, Jimmy Dewey Reese was thrown outside the car and into the bank and was killed.
The petition alleged that the proximate cause of the death of Jimmy Dewey Reese was the gross negligence of James F. Young, III: (1) in operating the car at such high, reckless and illegal rate of speed of approximately 70 miles per hour or more, that he lost control; (2) in operating the car at a speed faster than was reasonable, prudent and safe under the circumstances, to wit, with worn and slick tires, with defective brakes, and on a wet and slippery black-top road, which was narrow and winding, that is, in operating faster than 40 miles per hour, and in running at a speed of 70 miles per hour while it was raining; (3) in continuing to drive the car forward at unabated speed after losing control of same; (4) in not reducing speed on the approach to a curve, on narrow, winding and wet pavement, while it was raining; (5) in not exercising ordinary care and diligence to save the life of Jimmy Dewey Reese after his condition of peril became known to James F. Young, III, and in doing nothing thereafter to control the car and save his life, which was the failure to use the last clear chance to save the life of his passenger, and amounting to wanton conduct; and (6) in operating the automobile under the circumstances described in plaintiff's petition, whereby Jimmy Dewey Reese was killed, as a result of grossly negligent conduct of the driver.
The prayers were for the recovery of $200,000 for the wrongful death of plaintiff's son.
The defendants filed demurrers to the petition which were overruled on July 2, 1966. On August 12, 1967, the defendant James F. Young (Jr.) filed his motion for summary judgment. Thereafter, an order was entered enlarging the time requirements for filing any documents or pleadings respecting the motion for summary judgment; the defendant James F. Young (Jr.) then filed his objection to the consideration of an affidavit by Randall Evans, Jr., and to the order enlarging the time requirements for filing any documents or pleadings. The trial judge overruled the objection to the affidavit and to the order enlarging the time for filing documents and denied the defendant's motion for summary judgment.
Subsequently, the defendant James F. Young (Jr.) filed a motion to dismiss the plaintiff's complaint on the ground that it failed to state a claim upon which relief could be granted. On March 7, 1968, the trial judge overruled this motion. From this judgment the defendant James F. Young (Jr.) files his notice of appeal.
1. The first and second enumerations of error complain that the trial judge erred in overruling the defendants' general demurrer, and later motion to dismiss, to the petition as amended. The appellants, defendants in the court below, contend that the petition fails to allege facts sufficient to show gross negligence on the part of the individual defendant James Young, III. In support of this contention they cite Hopkins v. Sipe, 58 Ga. App. 511, 513 (199 SE 246) and Hennon v. Hardin, 78 Ga. App. 81, 83 (50 SE2d 236), which hold that mere excessive speed or other violation of the law is not sufficient in itself to constitute gross negligence.
Even assuming arguendo that we must apply the law prior to the Civil Practice Act (but see Hill v. Willis, 224 Ga. 263, 264 (161 SE2d 281)) and thus strictly construe the pleadings when tested on general demurrer, we cannot agree with the contention made. While it is true, as the appellants insist, that the mere violation of a speed law or excessive speed in and of itself does not amount to gross negligence, such violation or excessive speed coupled with other circumstances may amount to gross negligence. Parker v. Bryan, 93 Ga. App. 88, 91 (91 SE2d 49). As pointed out in Moore v. Bryan, 52 Ga. App. 272, 282 (183 SE 117), "while simply operating an automobile in violation of the speed laws would not necessarily as a matter of law be gross negligence, still an automobile can be operated in such a manner and at such an excessive and dangerous rate of speed, say 70 miles an hour, as to be out of control of the driver, and, under the circumstances of the particular case, to present a jury question as to whether or not the driver was guilty of gross negligence." See Hennon v. Hardin, 78 Ga. App. 81, 83, supra; Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159, 167 (6) (91 SE2d 135).
The instant pleading contains many averments of negligence in addition to mere excessive speed. These facts as alleged are, at least, sufficient to come within the ruling that "when facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable men as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury." Wood v. Olson, 104 Ga. App. 321, 322 (121 SE2d 677); Marsh v. Hargrove, 103 Ga. App. 264, 267 (118 SE2d 866); Wright v. Lail, 105 Ga. App. 261, 265 (124 SE2d 487).
2. The remaining enumerations of error relate to the order of the trial judge which denied the motion for summary judgment. There was no order within 10 days certifying that it should be subject to review. However, the appellant argues that since the appeal was taken from the final judgment, in this instance the overruling of the general demurrer to the complaint, the order overruling the motion for summary judgment could be considered. In this respect he relies on Code Ann. 6-701 (Ga. L. 1965, p. 18) which provides that when appeal is properly taken from an appealable judgment, "all judgments, rulings or orders rendered in the case which arc raised on appeal, and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such judgment, ruling or order standing alone, and without regard to whether the judgment, ruling or order appealed from was final, or was appealable by some other express provision of law contained in Paragraph (a) above, or elsewhere."
The Georgia Civil Practice Act of 1966 as amended in 1967 (Code Ann. 81A-156 (h)) provides: "An order granting summary judgment on any issue, or as to any party, shall be subject to review by appeal; but an order denying summary judgment is not subject to review by direct appeal or otherwise, unless within 10 days of the order of denial the trial judge certifies that the order denying summary judgment as to any issue or as to any party should be subject to review, in which case such order shall he subject to review by direct appeal." Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238. In construing the legislative history of this provision in the Summary Judgment Act the Supreme Court in Hill v. Willis, 224 Ga. 263, 266, supra, held: "The Act of 1959, supra, expressly provided that a judgment denying a summary judgment was not reviewable. Then the Appellate Practice Act of 1965, supra, as the last expression of the legislature at that time permitted such a review. Now, however, the Civil Practice Act (Ga. L. 1966, p. 609) as amended by the Act of 1967 (Ga. L. 1967, pp. 226, 238; Code Ann. 81A-156 (h)), permits appeals from judgments denying summary judgments only by direct appeal and only when within ten days from such judgment the trial court certifies that such judgment should be subject to review."
In the case of McLeod v. Westmoreland, 117 Ga. App. 659 (161 SE2d 335) this court has pointed out that the Civil Practice Act, being the list expression of legislative intent, controls as to the appealability or reviewability of a motion for summary judgment. This position is strengthened by the fact that the 1968 Act amending Section 1 (a) of the Appellate Practice Act of 1965 (Code Ann. 6-701 (a)) now provides: "Review of orders and judgments with respect to motions for summary judgment shall be governed by Section 56 (h), as amended, of the Georgia Civil Practice Act, approved March 18, 1966 (Ga. L. 1966, p. 609), as amended."
Therefore, since there was no certificate by the trial judge that the instant order for summary judgment should be subject to review, this court cannot review that order "by direct appeal or otherwise."
3. Since the ruling on the appeal in Case 43649 disposes of all the issues in Case 43650, the appeal in Case 43650 is dismissed.
Judgment affirmed in Case 43649; appeal dismissed in 43650. Bell, P. J., and Hall, J., concur.
Randall Evans, Jr., for appellees.
Robert E. Knox, Fulcher, Fulcher, Hagler, Harper & Reed, E. D. Fulcher, A. Montague Miller, for appellant.
ARGUED MAY 7, 1968 -- DECIDED JUNE 28, 1968.
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