The automobile accident in question occurred in the State of Georgia and it was observed in the former opinion of this Court that the record indicated that the trial court and the respective parties considered that the laws of the State of Georgia had been properly pleaded and proved and that the case proceeded upon this theory. However, the case was reversed because the record contained no evidence of the law of the State of Georgia requiring a guest in an automobile accident to prove gross negligence upon *Page 221 the part of the operator before a recovery could be had, and that therefore the presumption obtained that the laws of the State of Georgia are the same as the laws of the State of Tennessee upon this subject, and that a recovery could be based upon ordinary negligence proximately contributing to the accident.
Counsel is mistaken in the statement that the court raised this question of its own motion and without it being respondent to an assignment of error. We call attention to the third assignment of error, which was sustained by this Court, and which is as follows:
"The trial court erred in directing verdicts for the defendants when plaintiffs had presented proof that defendants were guilty of negligence proximately causing plaintiffs' injuries and losses. Proof of ordinary negligence as a proximate cause made out a case to be submitted to the jury because proof of gross negligence was not necessary where defendants failed to introduce in evidence any decision showing that the Georgia Law required plaintiffs to prove gross negligence."
In the former opinion of this Court the reported cases of the Supreme Court of this state upon this subject were discussed. The laws of a sister state or foreign jurisdiction must be pleaded and proved. The record does not disclose any competent proof of the laws of the State of Georgia upon this subject.
Since the former opinion was filed a suggestion for diminution of the record has been filed stating upon oath of attorney for petitioner that upon the trial of this cause counsel for the respective parties relied upon and read to the court the published opinions of the courts of the State of Georgia; that in the preparation of the transcript there was not included any reference to the Georgia cases relied upon and considered by the trial court and all concerned as evidence, and that their exclusion was not called to the attention of the court until the decision of this case on March 22, 1938. Since the above mentioned writing was filed a stipulation signed by attorneys for the respective parties has been filed stipulating that evidence of the following Georgia cases was erroneously omitted by the Clerk in the preparation of the transcript.
"The plaintiffs below (plaintiffs in error here) offered and read in evidence:
"a. McCord v. Benford, 48 Ga. App. 738, 173 S.E. 208;
"b. Petway v. McLeod, 47 Ga. App. 647, 171 S.E. 225;
"c. The unreported case of Diamond v. Shepard,1 decided by Judge Portrum, of this Court, construing some of the laws of Georgia. *Page 222
"The defendants below (defendants in error here) offered and read in evidence:
"a. Epps v. Parrish, 26 Ga. App. 399, 106 S.E. 297;
"b. Harris v. Reid, 30 Ga. App. 187, 117 S.E. 256;
"c. Peavy v. Peavy, 36 Ga. App. 202, 136 S.E. 96;
"d. Wachtel v. Bloch, 43 Ga. App. 756, 160 S.E. 97;
"e. Yearwood v. Yearwood, 45 Ga. App. 203, 164 S.E. 105;
"f. The unreported case of Williams v. Wyrick,1 decided by the Court of Appeals for the Eastern Division."
This stipulation operates as an abandonment of the above quoted third assignment of error, which was sustained in the former opinion of this Court, and we will now dispose of the case with this assignment of error eliminated, as having before us properly in the record the above mentioned cases decided by the appellate courts of the State of Georgia. It now appearing from the record that the cases and statutes set out in the stipulation were read in evidence in the lower court, this Court will take judicial notice of the cases, as it is not necessary that they should be copied into the record. Bagwell v. McTighe, 85 Tenn. 616, 4 S.W. 46.
From an examination of these cases it is apparent that there has been no change in the laws or judicial decisions of the State of Georgia since the case of Williams v. Wyrick, decided by the Eastern Division of the Court of Appeals in July, 1935. In this case it is said:
"It is well settled in Georgia that an invited guest cannot recover damages from a host caused by the simple negligence of the host in driving his automobile, and that only in cases of gross negligence on the part of the host can the guest recover."
It is unnecessary to review the facts of the case at bar, as a statement of the facts is contained in the former opinion of the Court. We were of the opinion then, and are of the opinion now, that, taking that view of the facts most favorable to the plaintiff below, the host was not guilty of gross negligence. However, the record does disclose a state of facts sufficient to take the case to the jury under the law in Tennessee on the question of proximate negligence upon the part of the host, but this is not sufficient to take the case to the jury under the laws of the State of Georgia.
In view of the stipulation above referred to, and the fact that counsel for plaintiff in error has not filed a reply either to the petition for suggestion of diminution of the record or to the petition to rehear, it is apparent that counsel for the respective parties are satisfied, and no question is being made as to the manner in which the laws of the State of Georgia were proved. In the former opinion of this Court the proper procedure in this regard is pointed *Page 223 out in a quotation from the case of De Soto Hardwood Flooring Company v. Table Cabinet Works, 163 Tenn. 532,43 S.W.2d 1069, in which it is said [page 1070]:
"There may be conflicting decisions or later decisions overruling the former, or the rule announced by the court may have been subsequently changed by statute. . . . It is sometimes difficult when the court has all of the reported cases in a particular jurisdiction before it to determine what the law on the matter under investigation is. The law is constantly changing, and what may be held to be the law to-day may be overruled tomorrow. Hence the necessity of proving what the law is in a foreign jurisdiction."
The clear meaning of this language is that the introduction of a statute or case in evidence is not sufficient, where an objection to the evidence is preserved in the trial court, but that it must be further proved that such case or statute is the law in force in the jurisdiction under consideration.
In the former plight of this record, prior to the suggestion for a diminution of the record and the stipulation, there was no competent evidence of any kind in the record of the law of the State of Georgia upon the question of gross negligence, and it was therefore necessary to reverse the action of the trial court in directing a verdict.
In view of the foregoing, we reverse our former holding and overrule all the assignments of error and affirm the action of the trial court in sustaining the motion for a directed verdict and dismissing plaintiff's suit. The plaintiff in error will pay the costs of this appeal.
1 Not designated for publication.