Opinion
41811.
ARGUED FEBRUARY 9, 1966.
DECIDED MARCH 8, 1966. REHEARING DENIED APRIL 1, 1966.
Action for damages. Bartow Superior Court. Before Judge Davis.
Duncan Gary, Vernon W. Duncan, for appellant.
David N. Vaughn, Carlton McCamy, William A. Ingram, for appellees.
1. The general grounds of the motion for new trial are without merit.
2. A deposition taken in a companion case between substantially the same parties, involving the same or substantially the same issues and growing out of the same transaction, is admissible if the witness whose deposition was taken is unavailable because beyond the subpoena powers of the courts of this State.
3. While it is a proper practice, in charging that the plaintiff could not recover if his injury resulted from failure to exercise ordinary care for his own safety in avoiding the consequences of the defendant's negligence, to include a statement that his duty to avoid the consequences of the defendant's negligence would arise only after that negligence was apparent, or should reasonably have been apparent to him, failure to include it, absent any request therefor, is not reversible error.
4. A charge that it is not necessary for the plaintiff to prove all of the acts of negligence charged against the defendants, but that he must prove "sufficient acts of negligence against each driver to constitute the proximate cause or a contributing proximate cause," and further charging that he must prove the negligence of the defendant to be held "in one or more of the particulars set forth in the petition," is not error. It does not place upon the plaintiff the burden of proving more than one act of negligence against the defendant.
5. Where plaintiff charges defendants with violations of Code sections delineating rules of the road and defendants affirmatively plead violations of the statutory rules of the road as negligence on the part of the plaintiff in the operation of his vehicle, and there is any evidence in support thereof, it is not error to charge the applicable portions of the statute and instruct the jury that "if you find that either of these drivers violated either of these Code sections, that would be negligence per se."
6. Where the principle of the family car doctrine, as applied to the facts pleaded and proven, is charged, if any elaboration is deemed proper and needful, it should be timely requested.
7. There was no error in the charge as to the form of the verdicts that might have been returned.
8. An additional charge on the principle of comparative negligence delivered after the jury had retired and were called back, but which was correct and pertinent, is not error.
9. It is error to charge that the jury should reduce to its present cash value any sum awarded for future pain and suffering.
10. While the charge dealing with concurring negligence might have been more elaborate, it was not error, and if a fuller charge were desired it should have been timely requested.
11. Other assignments of error are without merit.
ARGUED FEBRUARY 9, 1966 — DECIDED MARCH 8, 1966 — REHEARING DENIED APRIL 1, 1966 — CERT. APPLIED FOR.
A three car automobile collision occurred on U.S. Highway 41 about four miles south of Calhoun on December 31, 1961, in substantially the following manner: It was on Sunday and between 6:30 and 7 p. m.; a line of traffic, consisting of at least five automobiles, was traveling north toward Calhoun. It had been raining. The pavement was wet. The sun had gone down and it was dark. The lead car in the traffic line was driven by Mr. Knowles, whose wife was with him. They had been to Adairsville and were returning to their home in Calhoun. He noticed the line of traffic behind as reflected in his rear-view mirror, and saw a car (driven by Jerry Cleveland Edwards) pull out into the left lane and pass three vehicles, then pull back into the right lane just behind him. He apprehended that it might have been a State Patrol car and looked at his speedometer to determine whether he might be in danger of getting a traffic ticket. Seeing that he was traveling at 45 miles per hour he continued without any change in his driving. Coming from the opposite direction and in the left or west lane of traffic he saw a vehicle (driven by Roger Parrott) approaching with both lights burning. It was 300 to 400 yards ahead when he first observed the car coming and he judged that it was traveling at about the same speed that he was making. The road was paved, flat, straight for a long distance in both directions and the paved portion was 24 feet wide, with shoulders on each side relatively flat and about eight feet wide. The car that had pulled in behind him remained in that lane of traffic for only a short time, then suddenly whipped out into the left lane for the apparent purpose of passing, but the car (driven by Roger Parrott) coming from the opposite direction was then just in the stage of meeting Knowles, and there was a collision in the left or west lane at a point just about opposite the rear window of Knowles' car. He saw the oncoming vehicle spin around from the impact and heard it collide with the car (owned by John McKenzie, but driven by Frank Richard Edwards) that was next in the line of traffic behind him and which had been behind the car driven by Jerry Cleveland Edwards. Knowles' car was not involved. He stopped just a little way ahead in the driveway of a house and asked the people there, who were on the porch, to call an ambulance, then went back to the scene. There he found the Parrott car had been spun around and into the east lane, and the McKenzie car, next in the north lane, had struck it from behind. The two cars were "hooked together," the Jerry Edwards vehicle being partially on top of the front end of the McKenzie car.
It had happened in a matter of a second or two after Jerry Edwards had pulled out to pass Knowles. He judged that Jerry Edwards was traveling about 70 miles per hour, and the McKenzie car, next in line behind, while traveling slower, was closing the gap between it and the Knowles car.
The right front of the Jerry Edwards car had struck the oncoming Parrott car on its right front, thus causing it to spin around on the wet pavement and go over into the east lane just in front of the approaching McKenzie car.
Jerry Edwards testified that he had not seen the approaching Parrott car until he was up even with the Knowles car, that the Parrott car had only the right light burning, that because the McKenzie car had pulled up behind the Knowles car he could not re-enter the right or east lane and that he just had to try to make it to the left of the approaching car. Thus his right front struck its right front. He denied that he was traveling 70 miles per hour.
John McKenzie, owner of the car next in line behind the Knowles vehicle, had permitted his son, Jerre McKenzie, to take the car on a trip to Milledgeville, accompanied by his friend Frank Richard Edwards. Jerre had driven the car from Milledgeville to a point a few miles south of where the collision occurred, and, becoming tired, asked Frank Edwards to drive. They changed places, Edwards drove on and Jerre went to sleep and was asleep when the collision occurred. He knew nothing of how it happened. Frank Edwards testified that he was driving in the northbound lane of traffic at about 50 to 55 miles per hour, that Jerry Edwards had passed him and two other cars behind, cut into the northbound lane behind the Knowles car for a short time, then suddenly whipped out into the southbound lane and that the collision occurred immediately; that he had no time to put on brakes or to attempt to change his course. The Parrott vehicle coming south was knocked into the northbound lane between him and the Knowles car and a collision between the car he drove and the Parrott vehicle occurred immediately.
All vehicles involved were badly damaged. Parrott received serious injuries, as did Jerre McKenzie.
Jerre McKenzie, by his father John McKenzie, as next friend, brought suit against Jerry Cleveland Edwards, Roger Parrott and Frank Richard Edwards to recover for his injuries. In connection with that suit a deposition of Dr. Barnwell, the physician in Chattanooga, Tennessee, who had attended both Jerre McKenzie and Roger Parrott, was taken. At the taking of the deposition L. Hugh Kemp, attorney for Jerre McKenzie, Vernon W. Duncan, attorney for Roger Parrott, and Carlton McCamy, attorney for Frank Richard Edwards, were all present and interrogated the doctor. The defendant Jerry Cleveland Edwards, was not represented, though he had been given notice of the taking of the deposition and afforded opportunity to attend or have his counsel do so. The deposition was taken upon notice given by the plaintiff in that suit, Jerre McKenzie, for the purpose of obtaining evidence concerning his injuries. When the doctor had been examined as to his treatment, etc., of McKenzie, Mr. Duncan, attorney for Roger Parrott, sought to elicit information as to Parrott's injuries and treatment. Mr. Kemp, attorney for McKenzie, objected, but later agreed that if Parrott would pay for that portion of the deposition relating to Parrott's injuries and treatment, it might continue. Mr. Duncan agreed, and the doctor was then examined as to Parrott. He was cross examined by Mr. McCamy, attorney for Frank Richard Edwards, and by Mr. Kemp, attorney for Jerre McKenzie. The deposition was used and became a part of the transcript in the trial of that case.
Thereafter the present suit was brought by Roger Parrott against Jerry Cleveland Edwards, Frank Richard Edwards, Jerre McKenzie and John McKenzie. Plaintiff sought to get another deposition from Dr. Barnwell, but could not, nor could he require him to attend the trial, since he resided in Tennessee. Mr. Duncan, attorney for Parrott, notified counsel for the defendants that he would offer the deposition in this case for the purpose of establishing the nature and extent of Parrott's injuries. They would not agree that it be used.
When this case came on for trial November 17, 1964, the Barnwell deposition was offered, but upon objection of counsel for the defendants was rejected.
A verdict was returned for the plaintiff, Parrott, and against the defendant, Jerry Cleveland Edwards, for $10,120, but in favor of the defendants, Frank Richard Edwards, Jerre McKenzie and John McKenzie. Being dissatisfied with the verdict, plaintiff moved for a new trial as to all defendants. From an order overruling the motion, as amended, plaintiff now appeals, enumerating as error the exclusion of the Barnwell deposition and numerous portions of the charge.
The defendant, Jerry Cleveland Edwards, has entered no appearance in the appeal.
1. The evidence amply supports the verdict; the general grounds are without merit.
2. Exclusion of the Barnwell deposition was error. It was taken in a companion case, growing out of the same automobile collision, involving the same or substantially the same issues and between substantially the same parties. Code § 38-314; Myrick v. Sievers, 104 Ga. App. 95 ( 121 S.E.2d 185). It is not necessary that the parties to the two cases be the same, only substantially the same. The test is fully met here. That John McKenzie is a party appearing in the second suit but not in the first is not enough to alter the rule, particularly since his liability, if any, was a vicarious one growing out of his furnishing to his son, Jerre McKenzie, a family purpose vehicle. The parties are substantially the same. Atlanta W. P. R. Co. v. Venable, 67 Ga. 697; Gavan v. Ellsworth, 45 Ga. 283 (4); Goodwin v. Allen, 83 Ga. App. 615 ( 64 S.E.2d 212); J.J. Woodside Storage Co. v. Carr, 108 Ga. App. 34 (8a) ( 132 S.E.2d 241); Moultrie Nat. Bank v. Travelers Indem. Co., 181 F. Supp. 444. It is really a rule of necessity, and the reason upon which it is grounded is substantially the same as that discussed in Moore v. Atlanta Transit Co., 105 Ga. App. 70 ( 123 S.E.2d 693). Dr. Barnwell is a resident of Tennessee, beyond the reach of the subpoena powers of the courts of this State. He was unavailable for the trial. The situation is the same as that with which we dealt in Myrick v. Sievers, 104 Ga. App. 95, supra.
This error, however, is only as to the case against the defendant, Jerry Cleveland Edwards. The purpose of the deposition was to show the nature and extent of Parrott's injuries, and since the jury has found that no liability attached to the other defendants, error in the admission or exclusion of evidence going to the extent or nature of the injuries was harmless in the case against them. Archer v. Kelley, 194 Ga. 117 (4) ( 21 S.E.2d 51); Strickland v. Babcock Lbr. Co., 142 Ga. 120 (2) ( 82 S.E. 531); Rountree Co. v. Gaulden, 123 Ga. 449 (4) ( 51 S.E. 346); Lewis v. Adams, 61 Ga. 559 (4); Atlantic C. L. R. Co. v. Tomlinson, 21 Ga. App. 704 (3) ( 94 S.E. 909). If, as to these defendants, no liability attached, it must follow that evidence as to the nature and extent of the plaintiff's injuries could not have changed the verdict.
3. Error is assigned upon a charge that the plaintiff "must have been in the exercise of ordinary care for his own safety at the time and place complained of and if by the exercise of ordinary care on his part he could have avoided the negligence of these defendants, or either of them, if you find they were negligent, he would not be entitled to recover in this case," because it was not charged (without request) in connection therewith that the plaintiff would be barred from recovery for failure to exercise ordinary care for his own safety only after the negligence of the defendants, or either of them, became apparent or should reasonably have been apparent to him.
The defendants had affirmatively pleaded in their answers that the plaintiff failed to have control of his automobile immediately before the collision with Jerry Cleveland Edwards, that he failed to apply his brakes and was driving at a speed that was greater than was reasonable and proper under the circumstances. Jerry Cleveland Edwards pleaded and testified that plaintiff had driven his car with only one light burning.
There was a full charge on the matter of comparative negligence.
While it has been held that it is a proper practice to include the charge that the duty of the plaintiff to exercise ordinary care to avoid the consequences of the defendant's negligence does not arise until that negligence is apparent, or would be apparent in the exercise of reasonable diligence ( Chandler v. Pollard, 64 Ga. App. 122 ( 12 S.E.2d 190); Wright v. Concrete Co., 107 Ga. App. 190, 198 ( 129 S.E.2d 351)), we have found no case holding that the failure to include it is reversible error. Indeed, it appears that the opposite result was reached in Brunswick Light c. Co. v. Gale, 91 Ga. 813, 817 ( 18 S.E. 11).
4. Error is assigned on the charge that "it is not necessary for the plaintiff to prove all the acts of negligence set out and charged against each of the drivers in this case, but it is absolutely necessary and essential that he prove sufficient acts of negligence against each driver to constitute the proximate cause or a contributing proximate cause to the injury and damage complained [of]," upon the ground that it placed upon the plaintiff the burden of proving more than one act of negligence on the part of the defendant Frank Richard Edwards.
As appellant asserts in his brief, the court charged, in connection with this that "injury alone does not create or impose liability, and negligence alone does not create or impose liability. In order for negligence to create or impose liability, insofar as the defendant, Frank Richard Edwards, is concerned, the plaintiff must have been injured as a result of the negligence of the defendant, Frank Richard Edwards, in one or more of the particulars set forth in the plaintiff's petition as amended, which such negligence must have constituted the proximate cause or a contributing proximate cause to the alleged injury or injuries sustained by the plaintiff."
It may well be doubted that placing the burden on the plaintiff to prove "sufficient acts of negligence against each driver to constitute the proximate cause or a contributing proximate cause" goes so far as the charge criticized in Chandler v. Pollard, 64 Ga. App. 122 (1), supra, where the plaintiff was restricted in his right to recover to proof of "all or some of the acts of negligence alleged," and we think "sufficient acts" to constitute proximate cause or a contributing proximate cause may be one or more of the acts of negligence charged. This is clearly made to appear by the charge that followed, explaining that plaintiff must prove the negligence of the defendant "in one or more of the particulars set forth." In determining whether there was error in the charge it should be examined as a whole. Brown v. Matthews, 79 Ga. 1 (1) ( 4 S.E. 13).
A further contention that the charge here eliminated the concurrent negligence principle and placed upon plaintiff the burden of proving that Frank Richard Edwards was the prime tortfeasor is without merit.
5. Several applicable Code sections prescribing rules of the road for drivers of motor vehicles were included in the charge and read to the jury, after which the court instructed that "if you find that either of these drivers violated either of those Code sections which I read to you, that would be negligence per se, or negligence as a matter of law." It is contended that this portion of the charge was error because by it the Code sections were made applicable to the plaintiff when there was no evidence that he had violated either of them. As is pointed out above, the defendants pleaded negligence on the part of the plaintiff in the operation of his vehicle, in driving at a speed greater than was reasonable and proper, failing to have it under control, failing to turn to the right, and failing to apply his brakes. There was evidence as to the fact that the pavement was wet, that it was or had been raining and that plaintiff was driving at a speed of from 45 to 50 miles per hour. Thus the portions of the statute charged were applicable. Evidence as to the negligence on the part of plaintiff was weak, and the jury may well have reached a determination that he was not negligent, but this was a question for them to resolve. It was proper for the court to deliver the charge as given to aid them in making their determination.
6. Recovery against the defendants John McKenzie and Jerre McKenzie was sought on the basis of the family car doctrine, pleaded in the petition, and supported by the evidence. It is contended that the court erred in failing (without request) to charge Code § 105-108, generally or in substance. We find no error in this. The court charged that "any liability of Jerre McKenzie and John McKenzie would be derivative from Frank Richard Edwards, [and] unless you find that the driver Frank Richard Edwards is liable, then I charge you that Jerre McKenzie and John McKenzie would not be liable in this case. If you find that Frank Richard Edwards is liable in this case, then I charge you that both Jerre McKenzie and John McKenzie may be liable."
This is an application of the family car doctrine to the facts as pleaded and proven in that respect. If any further elaboration were desired it should have been timely and appropriately requested.
7. Error is assigned upon the charge as to the form of the verdict that could have been returned as to the defendant Frank Richard Edwards. We think the charge was full and fair as to all forms of verdicts possible. In respect to the defendant, Frank Richard Edwards, they were instructed that "If you find in favor of the plaintiff against the defendant, Frank Richard Edwards and not Jerry Cleveland Edwards, the form of your verdict would be "we the jury find in favor of the plaintiff and against the defendants Frank Richard Edwards, Jerre McKenzie and John McKenzie," for whatever amount they should arrive at as being fair and proper. This was correct, for the evidence demanded a finding that the McKenzie vehicle was a family purpose car. Cf. Cohen v. Whiteman, 75 Ga. App. 286 ( 43 S.E.2d 184); Myrick v. Sievers, 104 Ga. App. 95, supra. They were also instructed as to returning a verdict against all defendants, or against Jerry Cleveland Edwards alone. The jury could not have misunderstood.
8. Error is assigned upon a charge given relative to the matter of comparative negligence when the jury was recalled after having retired to the jury room. The additional charge was to cover a situation in which the jury might find that the plaintiff and a defendant had been equally negligent, and which the court felt had not been adequately covered in the charge given. We find no error in the additional charge. The contention that it had the effect of directing the jury to find that the plaintiff had been negligent in some respect is unfounded, particularly when the additional charge is considered along with the charge on comparative negligence as first given.
9. Error is assigned upon a charge that if the jury should find in favor of the plaintiff and that he would experience pain and suffering in the future, any amount awarded for that should be reduced to its present cash value by using the rate of seven percent per annum.
This charge was error. Southern R. Co. v. Bottoms, 35 Ga. App. 804 (2) ( 134 S.E. 824); Bagley v. Akins, 110 App. 338 (2) (138 S.E.2d 430).
But again, it was reversible error only as to plaintiff's case against the defendant Jerry Cleveland Edwards, for the returning of a verdict against him only and in favor of all other defendants, was a determination that no liability attached as to the remaining defendants. Bagley v. Akins, 110 Ga. App. 338 (2), supra. "Wrong directions which do not put the traveler out of his way furnish no reason for repeating the journey." Cherry v. Davis, 59 Ga. 454, 457.
10. Error is assigned upon failure of the court (without request) to include a charge on the law of concurring negligence. It is contended that this placed a burden upon the plaintiff, greater than the law requires, of proving that negligence of the defendant Frank Richard Edwards was the proximate cause or contributing proximate cause, when all that was required was that it be shown that the negligence of Frank Richard Edwards in some degree contributed to plaintiff's injury.
The court charged that "if you find that it happened so near simultaneous as to be incapable of being separated and not being able to determine which collision actually caused the injury and damage, then it would be what the law denominates and calls joint and concurrent acts of negligence and would not relieve the driver and the owner of the car and the son who was riding with [Frank Richard Edwards] from liability." While this may not have been as full and complete a charge on the principle of concurring negligence as might have been given, yet, in the absence of any timely request for a fuller charge on that subject we find no reversible error.
11. The contention that the charge was error because it was, "as a whole, too favorable to the defendants," is without merit.
Judgment reversed as to appellee, Jerry Cleveland Edwards, for reasons stated in Divisions 2 and 9 and affirmed as to remaining appellees. Bell, P. J., and Jordan, J., concur.