Harris v. Smith

Quillian, Judge,

dissenting.

The question here involved is whether the trial judge correctly granted the defendant’s motion for summary judgment because the evidence conclusively showed that the defendants had no actual knowledge of any past reckless driving on the part of Jerry Smith or any knowledge of past conduct sufficient to support an action against him based on the theory of negligent entrustment.

In the instant case the plaintiff introduced records showing that Jerry Smith had been convicted eleven times for various offenses while he was living with his parents up to 1963. However, both parents positively denied that they had any knowledge of Jerry Smith’s propensity for reckless driving. There was no direct evidence showing that the defendants knew, other than as to one transaction, of Jerry Smith’s driving record or were informed, prior to the collision here involved, as to why he was not insured under the policy.

In this regard, according to the testimony of Mr. Wilcox, *310the insurance agent, the policy itself merely stated: “ ‘It is agreed that such insurance as is afforded by the policy for bodily injury liability, for property damage liability, for automobile medical payments and for collision or upset does not apply to accidents or loss occurring while any automobile is being personally driven by,’ and then the name ‘Jerry Smith’ is inserted.” He also testified that there was a specific notation on the front of the policy which provided: “Never include coverage for the boy . . . has own car.” The letter relative to why Jerry Smith was excluded from coverage on the defendants’ policy, to which the majority opinion makes reference, was written after the accident in question occurred. Being after the fact, it had no evidentiary value.

“However difficult it may have been to the plaintiffs when faced with the owner’s statement of his limited knowledge of a single incident of recklessness, it was incumbent upon them to show in opposing the motions for summary judgment that he had actual knowledge of a pattern of reckless driving or facts from which such knowledge could be reasonably inferred in order to preserve the issue for jury determination.” Saunders v. Vikers, 116 Ga. App. 733, 736, supra. “While it may be difficult to prove the existence of actual knowledge on the part of one who denies it (because in such case direct evidence is not attainable, unless he admits it), nevertheless, even actual knowledge can be demonstrated by the proof of circumstances which will admit of no other reasonable conclusion than that the party who asserts his ignorance of a given fact actually knew it, and that his denial is untrue.” Roebuck v. Payne, 109 Ga. App. 525 (3) (136 SE2d 399).

There are federal cases holding that the fact a witness is a party or interested in the result of the case, along with other circumstances, is sufficient to raise a question as to his credibility and require the submission of such issue to a jury. See Sartor v. Arkansas Natural Gas Corp., 321 U. S. 620 (64 SC 724, 88 LE 967), using this reasoning as a basis for denying summary judgment. However, since a motion for summary judgment is analogous to a motion for directed verdict, we consider the Georgia rule in determining whether the evidence demands a verdict or not.

*311This rule finds comprehensive explanation in Lankford v. Holton, 187 Ga. 94, 102 (200 SE 243) which holds: “Direct and positive testimony, as distinguished from testimony circumstantial, opinionative, or actually negative in character, which is given by an unimpeached witness as to the existence of a fact apparently within his own knowledge, which is not in itself incredible, impossible, or inherently improbable, and which is not contradicted directly or by proof of facts or circumstances that could be taken as incompatible with such testimony, cannot be arbitrarily rejected by a jury or other trior of the facts upon the mere surmise that it perhaps might not be in accord with the truth,” and in Myers v. Phillips, 197 Ga. 536 (4) (29 SE2d 700).

As is reiterated in cases explaining this rule, where there are facts or circumstances which tend to contradict, or are inconsistent with, the witness’s direct testimony or such testimony is inherently improbable, then the witness’s credibility is for the jury and they may disregard such testimony. Pantone v. Pantone, 206 Ga. 305, 308 (57 SE2d 77); Williams v. Paul F. Beich Co., 74 Ga. App. 429, 432 (40 SE2d 92); Nicholson v. State, 112 Ga. App. 306, 307 (145 SE2d 282).

Under the facts of this case we should not hold as a matter of law that the circumstances were such as to admit of no other reasonable conclusion than the parties asserting ignorance of the fact actually knew such fact and their denials were untrue. The fact that Jerry Smith’s driving record was studded with convictions, standing alone, would not give rise to an inference that the defendants had knowledge of such record so as to create an issue for the determination of a jury. Our own experience tells us that when a boy has committed an infraction he will, if possible, keep that information from his parents; they are the last who are likely to learn of it. If he could arrange to dispose of the traffic charges without seeking aid from his parents, it was the most likely and natural course for the boy to follow. Hence, their positive testimony that they did not have any knowledge of the occasions does not conflict with any circumstantial evidence to the contrary.

McCurry v. Bailey, 224 Ga. 318, supra, does not conflict with *312this view, since it is authority for the proposition that where circumstances do conflict with positive testimony a jury question is presented.

For the foregoing reasons I dissent.

I am authorized to state that Chief Judge Felton and Judges Eberhardt and Whitman concur in this dissent.