Opinion
32972, 32973, 32998, 32999.
DECIDED MAY 2, 1950.
Damages; from Walker Superior Court — Judge Nichols. January 6, 1950.
C. H. Porter, Matthews, Owens Maddox, for plaintiff in error.
Gleason Painter, contra.
1. Where failure to join a codefendant as a party defendant in an appeal will not bring about a dismissal thereof, the fact that such codefendant was made a party defendant in the motion for a new trial does not render him a necessary party to the appeal, and motions to dismiss the bills of exceptions because such codefendant was not made a party defendant therein are denied.
2. There being some evidence to support the verdict, and it having the approval of the trial court, no error of law appearing, the verdict and judgment will not be disturbed by this court.
DECIDED MAY 2, 1950.
T. M. Ware, the defendant in error in Case No. 32973 and Mrs. T. M. Ware, the defendant in error in Case No. 32972 filed separate suits in the Superior Court of Walker County against W. R. L. Blaylock, the plaintiff in error in this court and herein referred to as the defendant, and one Mynard Harris, not a party to this appeal, alleging in their respective petitions that Mrs. Ware had been permanently injured as a result of the concurring negligence of the two defendants. The petitions set forth that the defendant Blaylock is the half brother of Mr. Ware; that the plaintiff and her husband were engaged in renovating their home in Chattanooga Valley and the defendant was assisting in this work and living with them; that it had been agreed between them that he should receive board and living quarters with them, and that he should transport Mrs. Ware to her work in Chattanooga daily as a part of his services, that in the early morning of May 21, 1948, the defendant was driving Mrs. Ware to work along Rock Creek Road; that said road is paved, about 20 feet in width, with dirt shoulders 10 feet in width on each side; that he crossed a bridge, driving in the center of the road, and momentarily increased his speed to about 60 miles per hour; that he was approaching a gradual curve in the highway and had a clear view north of more than 1000 feet; that at this moment the car driven by the defendant Harris approached around the curve traveling in a southerly direction; that Harris was traveling at about 50 miles per hour, that he had a clear view ahead of about 300 feet; that he was not on the right side of the road; that as he reached a point about 300 feet north of the Blaylock car he veered to the left directly toward that car; that when Blaylock was within 200 feet of the Harris car he suddenly applied his brakes and skidded a distance of 78 feet; that he did not blow his horn; did not turn to the right side of the road or otherwise attempt to avoid the Harris car, and that the two cars collided head on, which collision inflicted serious and permanent injuries on the plaintiff, Mrs. Ware. Issue was joined and on the trial of the case the evidence, construed in its light most favorable to support the verdict, authorized the jury to find facts substantially as follows: that Mrs. Ware was a passenger in the Blaylock car; that Blaylock, shortly before the collision, had glanced at his watch and made the comment that they were running late and had thereupon accelerated his speed; that he was driving more to the middle than the side of the road; that the plaintiff saw the Harris car suddenly approaching and that she called this to Blaylock's attention; that Blaylock made no effort to get out of the way of the car or to pull onto his own traffic lane or out on the shoulder, but that he did nothing at all except to apply his brakes; that Harris apparently made no attempt to stop, but was just beginning to pull his car back to the right side of the road at the moment of impact; that the Blaylock car skidded on into the Harris car and the engines of the two cars jammed together head on; that Mrs. Ware was thrown through the windshield, receiving severe lacerations which necessitated operations and permanently impaired the vision of one eye; that her nose was almost entirely severed from her face, and that in consequence her features have been permanently mutilated, her vision impaired, and she suffers from recurring violent headaches and other physical injury.
The defendant Blaylock filed his demurrers and answer to the petitions and made an unsuccessful attempt to have the case removed to the Federal court. The defendant Harris did not at any time appear or plead. At the conclusion of the evidence in each case the jury returned a verdict for the respective plaintiffs in the sums of $4500 and $7500, finding against Blaylock and Harris jointly. To the judgments based on these verdicts Blaylock filed his motions for a new trial and in each made Harris a party defendant, service of the same being acknowledged by the guardian ad litem for Harris. These motions, based on the general grounds only, were overruled, and Blaylock excepted. His bill of exceptions does not name Harris as a party defendant, and Harris is not a party to this appeal. Identical motions were subsequently filed in this court to dismiss the bills of exceptions. A cross-bill was filed by the defendants in error assigning error upon the overruling of their motions to dismiss the answers of the defendant as being filed at improper times.
1. All persons who are interested in sustaining or reversing the judgment of the trial court are necessary parties on appeal, and must be made parties to the bill of exceptions. Greeson v. Taylor, 160 Ga. 392 ( 128 S.E. 177). However, where in a suit against two codefendants, verdict and judgment have been entered against them jointly, and one of such codefendants makes a motion for a new trial which is overruled, the movant may except to the judgment overruling his motion and bring the case to this court without making the other defendant a party to the bill of exceptions. Failure to name the codefendant as a party defendant, or to join him in the appeal, will not work a dismissal of the writ of error. See Mooney v. Shelfer, 205 Ga. 766 ( 55 S.E.2d, 212), and cases there cited; Fennell v. Davis, 34 Ga. App. 548 ( 130 S.E. 595); Logue v. Holleman, 52 Ga. App. 36 ( 182 S.E. 200); Mackle Construction Co. v. Hart, 27 Ga. App. 405 ( 108 S.E. 818); Durrence v. Cowart, 160 Ga. 671 ( 129 S.E. 26); Ball v. Moore, 181 Ga. 146 ( 182 S.E. 28). All these cases hold that a codefendant need not be joined in the bill of exceptions on appeal. This is the general rule, and the cases cited by the plaintiffs to the contrary are all conformed to particular facts under which it would be necessary to notify a party whose interest in the appeal was such that he ought to be present and have an opportunity to be heard. We do not agree with counsel for the plaintiffs that the mere fact that the guardian ad litem for the nonresident codefendant, Harris, acknowledged service of the motion for a new trial would take this case out of those cited above. The foregoing cases hold in effect that Harris to begin with was not a necessary party to the appeal and, since it was not necessary to make him a party to begin with, the appellant could drop him any time he chose to do so.
The motions to dismiss the bills of exceptions are therefore without merit.
2. Each motion for a new trial is based on the general grounds only. In reviewing the general grounds of such a motion, it is fundamental that it is a question for the determination of the jury, first, as to whether or not the acts of negligence alleged are supported by the evidence, and, second, whether such negligence, when it is so established, is a proximate concurring cause of the injury. Jordan v. Lee, 51 Ga. App. 99 ( 179 S.E. 739); Georgia Power Co. v. Ryan, 24 Ga. App. 288 ( 100 S.E. 713). This court will review the evidence in its light most favorable to support the verdict and where such evidence is thus sufficient it will not reverse the judgment of the trial court on the general grounds.
The contention of the plaintiff in error is that he was forced to act in an emergency caused by the sudden appearance of the Harris car on the wrong side of the road; that he did apply his brakes, and that, because the degree of care required in an emergency is less than it would have otherwise been, he was not guilty of negligence in the premises. In support of his contention he cites Morrow v. Southeastern Stages, 68 Ga. App. 142 ( 22 S.E.2d 336); Cone v. Davis, 66 Ga. App. 229 ( 17 S.E.2d 849); English v. Ga. Power Co., 66 Ga. App. 363
( 17 S.E.2d, 891). The negligence alleged against Blaylock is, in part, as follows: (a) That he failed to keep his car under control; (b) he failed to drive to the right of the center line of the highway; (c) he failed to sound his horn or give warning of his approach; (d) he failed to turn to the right or permit the Ford car to pass without interference; (e) he failed to slow down the speed of said Pontiac on approaching the curve of said highway and (f) that he was exceeding the speed limit of 55 miles per hour. The evidence on these contentions would have authorized the jury to find: (a) That the car skidded a distance of 78 feet; (b) that he was driving more to the center than the right of the road and that, after the collision, the rear of his car was found extending to the left of the center line thereof; (c) that he did not sound his horn when he first saw the defendant Harris approaching him on his side of the road; that Harris continued without slackening speed, and that, had he sounded his horn and called the attention of the approaching driver to his peril the accident might have been averted; (d) that there was ample room to avoid the oncoming car, had the defendant placed his car on the shoulder of the road and out of its way; (e) that he did not slacken his speed on approaching the curve, but on the contrary increased it, and (f) that he was exceeding the speed limit. There was therefore evidence, although slight in respect to some of these contentions, and although contradicted in respect to others, sufficient to authorize the jury to find negligence as alleged on the part of the defendant Blaylock. As respects the second contention, that such negligence, if any, was not the proximate cause of the collision in that Harris, by proceeding at a rapid rate on the wrong side of the road and running head on into the car in which Mrs. Ware was riding, was guilty of gross negligence which proximately caused the injuries complained of. The fact that one defendant is guilty of gross negligence will not bar a recovery against a codefendant as a joint tort-feasor where the negligence of both combines to constitute the proximate cause of the injury. See Longino v. Moore, 53 Ga. App. 674 ( 187 S.E. 203). The jury were authorized to find that the defendant Blaylock might have, in the exercise of due care, avoided the collision, either by warning the approaching car of his presence after he became aware of it, or by turning out to miss it. If his rate of speed was such as to prevent his taking this affirmative action to prevent a collision, that in itself would be negligence sufficient to uphold the verdict. The general grounds of the motions for a new trial are therefore without merit.
The trial court did not err in overruling the motions for a new trial.
Judgment affirmed on the main bills of exceptions. Cross-bills of exceptions dismissed. MacIntyre, P. J., and Gardner, J., concur.