Westmoreland, Hall, McGee, Warner & Oxford, John L. Westmoreland, Jr., J. M. Crawford, for appellee.Van Gerpen, Bovis, Kyle & Burch, E. J. Van Gerpen, George N. Skene, for appellant.
We granted certiorari in this case to address questions concerning application of CPA 35 (a) (Code Ann. 81A-135 (a); Ga. L. 1966, pp. 609, 647; 1972, pp. 510, 527) and the guest passenger rule.
The plaintiff-appellant-respondent in certiorari brought this wrongful-death action in the Bleckley Superior Court against the defendant-appellee-applicant for certiorari. These are the facts giving rise to the dispute: The plaintiff's 18-year-old daughter and the defendant had come from Valdosta to Atlanta for a weekend visit at the plaintiff's home. The automobile in which they drove was purchased by the plaintiff, and he furnished his automobile to his deceased daughter for her use in going to work and college. The decedent had contracted the flu, and on the return leg of the decedent's and the defendant's journey back to Valdosta, the plaintiff requested the defendant to drive if his daughter became unable to "make it." The decedent and the defendant stopped to get a hamburger at a restaurant in the vicinity of Macon, and, at the decedent's request, the defendant then took the wheel. On Interstate 75 South near Ashburn, Georgia, the automobile in which they were driving left the southbound lane of the highway, crossed the median directly in front of the northbound traffic, and was struck by a vehicle going in the northward direction. The plaintiff's daughter was killed.
During the discovery stage of the trial, it was disclosed that the defendant could not remember the facts and circumstances surrounding the accident. His physician attributed this lapse of memory to a condition described as "traumatic amnesia." Pursuant to CPA 35 (a), the plaintiff filed a motion for a court order requiring the defendant to submit to a mental and physical examination. This motion was denied by the trial court. A motion in limine to suppress the defendant's proffered medical testimony concerning his "traumatic amnesia" was also denied.
The trial court determined that the decedent was a guest passenger of the defendant at the time of the collision, which invokes the guest passenger rule requiring gross negligence to be proved before a recovery against the host for personal injuries to the guest is sanctioned. Bickford v. Nolen,
240 Ga. 255 (240 SE2d 24) (1977); Epps v. Parrish,
125 Ga. App. 539 (188 SE2d 393) (1972). See also Bradford v. Parrish,
111 Ga. App. 167 (141 SE2d 125) (1965). In Schlagenhauf v. Holder,
379 U. S. 104 (85 SC 234, 13 LE2d 152) (1964), the Supreme Court of the United States granted certiorari in order to interpret the "in controversy" and "good cause" requirements of Fed. Rule of Civ. Proced. 5 (a), the federal counterpart of the Georgia rule.
The defendant argued that this would be an unconstitutional invasion of his right of privacy.
The Supreme Court disagreed, holding that Rule 35 (a) requires a "discriminating application by the trial judge" and that "[t]he 'good cause' and 'in controversy' requirements of Rule 35 make it very apparent that sweeping examinations of a party who has not affirmatively put into issue his own mental or physical condition are not to be automatically ordered merely because the person has been involved in an accident . . ." 379 U. S. at 121.
Noting that Rule 26 (b) imposes "relevancy" as the standard for determining the scope of discovery generally, the court held that the "in controversy" requirement, found only in Rule 35, and the "good cause" requirement, found only in Rule 34 and 35, require something more. The court specifically held that in determining whether good cause had been shown for ordering the requested mental and physical examination, "[t]he ability of the movant to obtain the desired information by other means is also relevant." 379 U. S. at 118. Although stating that the requirements of Rule 35 (a) are not generally met merely by allegations in the pleadings, the court did note several "situations where the pleadings alone are sufficient to meet these requirements. A plaintiff in a negligence action who asserts mental or physical injury [cit.], places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. This is not only true as to a plaintiff, but applied equally to a defendant who asserts his mental or physical condition as a defense to a claim, such as, for example, where insanity is asserted as a defense to a divorce action. [Cits.]" 379 U. S. at 119.
In this case, the defendant did not assert his mental or physical condition as a defense to the plaintiff's claim; that is, the defendant did not allege that he was not liable to the plaintiff because his traumatic amnesia prevented him from remembering the facts and circumstances of the accident. We conclude that the trial court did not abuse its discretion in ruling that the facts and circumstances of the collision could be established by other sources of evidence and, therefore, the plaintiff had not shown "good cause" for requiring the defendant to submit to the mental and physical examination.
2. As to the application of the guest passenger rule, the defendant states that this case presents a question of first impression in Georgia, namely, whether a person can be a guest passenger in an automobile owned by a member of his or her family. The plaintiff argues that his daughter was the bailee of the automobile, and, therefore, in relation to third persons such as the defendant, she stood in the position of the true owner. We agree with the plaintiff. Under the circumstances of this case, we find that the plaintiff father was the bailor of the automobile and the decedent daughter was the bailee. See Whitehill v. Strickland, 64 Cal. Rptr. 584 (256 CA2d 837) (1967); Degenstein v. Ehrman, 145 NW2d 493 (N. D. 1966); Baldwin v. Hill, 315 F2d 738 (6th Cir. 1963); Cf. Nash v. Reed,
81 Ga. App. 473 (59 SE2d 259) (1950). For purposes of application of the guest passenger rule, the bailee stands in the same place as the true owner with respect to third persons. Baldwin v. Hill, supra; Degenstein v. Ehrman, supra.
Thus, the question presented is whether the owner of an automobile becomes the guest passenger by reason of the fact that another occupant in the automobile assumes the driving.
Other courts have addressed this question and, "the majority of the decided cases hold that the owner of an automobile is not the guest of the driver while riding in his own car. Gledhill v. Connecticut Co., 121 Conn. 102, 183 A 379 (1936); Lorch v. Eglin, 369 Pa. 314, 85 A2d 841 (1952); Ahlgren v. Ahlgren, 152 Cal. App. 2d 723, 313 P2d 88 (1957); Naphtali v. Lafazan, 7 Misc. 2d 1057, 165 NYS2d 395 (1957) affirmed 8 AD2d 22, 186 NYS2d 1010; Leonard v. Helms, 269 F2d 48 (CA 4, 1959); Parker v. Leavitt, 201 Va. 919,
142 Ga. App. 243 (236 SE2d 20) (1977) (wherein it was held that the question of whether the injured party was an invitee or a guest passenger should have been submitted to the jury, since there was evidence authorizing the jury to make either finding.)
HALL, Justice, concurring specially in Division 2.
This case perfectly illustrates the absurdity of the guest-passenger rule. See my special concurrence in Grimes v. Roe,
242 Ga. 669, 670-671 (
251 SE2d 266) (1978) and my dissent in Bickford v. Nolen,
240 Ga. 255, 258-261 (
240 SE2d 24) (1977). Under the majority opinion, where two parties alternate in driving an automobile on a trip, the duty of care owed to the non-driver is slight care when the owner is driving and ordinary care when the non-owner is driving.
1979
Notes:
1. In Georgia, it has been held that where two people enter into an agreement to make a trip for their joint pleasure or benefit and they share expenses and take turns in driving the motor vehicle, the standard of care owed by the driver to the occupant is ordinary care, whether the occupant be the owner of the vehicle or the person who is invited to accompany the owner or person in charge of the automobile. Edwards v. McKenzie,
114 Ga. App. 395 (151 SE2d 469) (1966). However, the plaintiff has not argued that the defendant owed the decedent a duty of ordinary care under this theory.
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