Peavy v. Peavy

136 S.E. 96, 36 Ga. App. 202, 1926 Ga. App. LEXIS 867

• Court: Court of Appeals of Georgia
• Decided: December 14, 1926
• Docket: 17665
• Status: Published

Opinion

Luke, J.

(After stating the foregoing facts.)

“One riding by invitation and gratuitously in another’s automobile can not recover for injury caused by the other’s negligence in driving, unless it amounted to gross negligence.” Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297); Harris v. Reid, 30 Ga. App. 187 (117 S. É. 256).

“ ‘ Gross neglect is the want of that care which every man of common sense, how inattentive soever he may be, takes of - his own property.’ Civil Code (1910), § 3473. While this and the preceding sections define the different degrees of diligence and negligence in terms of property, the rules thus qualified have been ‘recognized as extending with equal force to diligence to prevent injury to the person.’ Alabama Midland Ry. Co. v. Guilford, 119 Ga. 523, 525 (46 S. E. 655, 656); Civil Code (1910), § 3472. The distinction between gross negligence and the lack of ordinary care, while not applied in some jurisdictions, is well recognized in this State. Insurance Company of North America v. Leader, 121 Ga. 260, 272 (48 S. E. 972); Seaboard Air-Line Ry. v. Cauthen, 115 Ga. 422 (1), 423 (41 S. E. 653). ‘Gross negligence,’ as applicable to particular facts and circumstances, in those jurisdictions where it is recognized is alsp defined as ‘the want of slight care and diligence/ ‘such care as careless and inattentive persons would usually exercise under the circumstances/ ‘want of that diligence which even careless men are accustomed to exercise/ ‘carelessness manifestly materially greater than want of common prudence/ ‘the entire absence of care.' 2 Words & Phrases (2d Series), 787-789, 792. Many authorities regard gross negligence as the equivalent of wilful and wanton negligence, although in this State it is not so accounted, unless the evidence indicates ‘that entire absence of care which would raise the presumption of conscious indifference/ or that, with reckless indifference, the person acted with actual or imputed knowledge that the inevitable or probable consequence of his conduct would be to inflict injury. So. Ry. Co. v. Davis, 132 Ga. 812, 815, 818 (65 S. E. 131); So. Ry. Co. v. O’Bryan, 119 Ga. 147 (45 S. E. 1000).” Harris v. Reid, supra, headnote 2. Conceding, but not deciding, that the State law, prohibiting the driving of automobiles at a greater rate of speed than ten miles an hour while approaching and traversing intersections of public highways, applies to intersections of streets in a city, the violation of this law would not constitute gross negligence. Southern Ry. Co. v. Davis, 132 Ga. 812, 817 (65 S. E. 131). The allegation in the petition that such violation amounted to gross negligence was a mere conclusion of the pleader. Further, we find no facts stated in the petition as to the acts and conduct of the defendants which evidenced “the want of that care which every man of common sense, how inattentive soever he may be, takes of his own property,” or which evidenced “carelessness manifestly materially greater than want of common prudence,” or “the entire absence of care.” It follows that the court erred in overruling the general demurrer to the petition.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent, on account of illness.