Opinion
36716.
DECIDED MAY 17, 1957. REHEARING DENIED JUNE 7, 1957.
Declaratory judgment. Before Judge Thomas. Applying Superior Court. February 20, 1957.
J. H. Highsmith, for plaintiff in error.
Dan S. Cowart, Peyton Miles, Larry E. Pedrick, contra.
The rulings of the court were correct and in accordance with the evidence, the verdict, and the charge of the court.
DECIDED MAY 17, 1957 — REHEARING DENIED JUNE 7, 1957.
The history of this case presents a somewhat peculiar proceeding. Cotton States Mutual Insurance Company, hereinafter called the plaintiff, instituted an action against Coy Rentz, his son Talmadge Rentz, and Henry Reynolds, asking for a declaratory judgment concerning liability on a motor vehicle liability insurance policy issued by the plaintiff to Coy Rentz.
The petition, omitting the formal parts, alleges: Paragraph 1 alleges jurisdiction. Subsequent paragraphs read as follows: "2. On November 22, 1954, petitioner issued to defendant, Coy Rentz, a policy of automobile liability insurance covering one 1953 Ford 3/4 ton pickup truck, motor #F25D3A-12988, used by said defendant in connection with his farming business, being policy #A-209472 issued for a period of one year. The policy was delivered to Coy Rentz and is now in his possession.
"Under coverage `A' of said policy petitioner, in accordance with the limits stated in the policy, agrees, `to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death, at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.'
"The policy further provides that the company shall, `defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damage on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.' The policy further provides under the heading `exclusions', `this policy does not apply; (d) Under coverages A and C to bodily injury to or sickness, disease or death of any employee of insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workman's compensation law.'
"3. Defendant, Coy Rentz, is a farmer owning a farm, on which he lives, located about 7 miles northeast from Baxley, Georgia, adjoining State Highway #144. Defendant, Talmadge Rentz, is the son of Coy Rentz, has reached his majority and is married. At all times herein alleged Talmadge Rentz was an employee of Coy Rentz, being employed on the farm owned by Coy Rentz. Under the terms of his employment working on said farm and as compensation there for having a house on said farm to live and receiving one-half of the net proceeds of the crops grown thereon. As a part of his said employment he assisted his father in all works in connection with the farm, including the care and maintenance of farm equipment, including automotive equipment, as directed by his father.
"4. On January 22, 1955, defendant, Coy Rentz, owned a farm pickup truck, covered by the insurance policy issued by plaintiff as above alleged, used in connection with said farm, and as a part of the farm equipment. In the early evening of that day, defendants, Coy Rentz and Talmadge Rentz, started northeast along Highway No. 144 from the house of Coy Rentz in said Ford pickup truck, Coy Rentz driving. After proceeding for several hundred feet the truck stalled and could not be started. Defendant, Coy Rentz, then directed his said son, Talmadge Rentz, to go back to the house and get the farm tractor and pull the truck off of the road. Following Coy Rentz's direction Talmadge Rentz did go back to the house to get the farm tractor, attached it to the truck and started towing it southwestward on said highway.
"5. An automobile being driven by defendant, Henry Reynolds, southwestward on said highway approached said truck, tractor and a farm trailer, which was then attached to the tractor and the truck and between them. The approaching automobile struck said trailer and destroyed it. Defendant, Talmadge Rentz, claims that he was injured in said collision.
"6. Defendant, Talmadge Rentz, has brought a suit in the Superior Court of Appling County, Georgia, against Henry Reynolds and Coy Rentz, being civil suit No. 2789. This action is on the calendar of the October 1956 term of the superior court for trial. In said suit plaintiff alleges that his father, Coy Rentz, was grossly negligent in allowing the truck as it was being towed backwards by Talmadge Rentz to cross the center line of the highway. He further alleges that Coy Rentz was negligent `in requesting petitioner to hook the tractor to said truck and pulling said truck off of the highway by negligently allowing and guiding said truck out of its proper course and across the center line'. Defendant, Henry Reynolds, is charged with exceeding the speed limit, failing to heed warning signs and causing his automobile to careen to the left and into the trailer. Said acts of negligence on the part of said two defendants are alleged to have injured and damaged plaintiff in that suit in the sum of $30,000, for which he seeks judgment.
"7. A copy of said suit was forwarded to petitioner and petitioner was requested to defend same. Petitioner employed J. H. Highsmith, attorney, to investigate and take such steps as may be necessary in order to protect its rights. Petitioner, through said attorney, in order to prevent said action from being in default and a default judgment being taken, filed an answer on behalf of Coy Rentz.
"8. From its investigation petitioner has determined that the said Talmadge Rentz at the time of said collision was an employee of defendant, Coy Rentz, engaged in the employment at the time of the collision. This being true under the exclusions of said policy petitioner would not be liable to defend said action nor to pay any judgment that may be rendered therein.
"9. If petitioner defends said case it will incur the further and additional expense of at least $1,000, and if there is no coverage under its contract of insurance so issued, which petitioner alleges there is not, then in equity and in good conscience petitioner should not be called upon to make this outlay of money.
"10. If petitioner withdraws from the defense of said suit without protection of the courts and a declaration of the court as to its rights and liabilities as herein sought, it faces the possibility and hazard of having a large verdict rendered which it may be called upon to pay.
"11. Petitioner contends and alleges that under the above quoted exclusion of said paragraph, defendant, Talmadge Rentz, plaintiff in the action pending in the superior court above referred to, at the time of the collision was an employee of Coy Rentz engaged in his employment, and that under the terms and provisions of said policy plaintiff is not liable, either to further defend said action [or] to pay any judgment that may be rendered therein. On the other hand, defendant, Coy Rentz, contends that under the terms of said policy petitioner is liable to defend said suit and to pay any judgment that may be obtained against him therein up to the limits of liability stated in the policy. An actual controversy exists between the plaintiff and defendants, Coy Rentz and Talmadge Rentz.
"12. Petitioner occupies an uncertain and insecure position and is entitled to be afforded relief by having the court declare that petitioner under the provisions of the insurance policy issued and in view of the facts alleged, is not liable either to defend said action or to pay any judgment that may be rendered therein.
"13. Petitioner is further entitled to have the parties restrained from proceeding with the action in the superior court, filed by Talmadge Rentz against Coy Rentz and Henry Reynolds, above referred to, until the rights and liabilities of petitioner have been declared and adjudged by this court and to have the present status of said suit maintained until the rights and liabilities of petitioner have been declared.
"Wherefore, petitioner prays: 1. That process issue as provided by law. 2. That upon the hearing of this matter the court declare petitioner's rights, status and liabilities and declare that petitioner is not liable under the provisions of said policy to defend said suit instituted by Talmadge Rentz, or to pay any judgment that may be entered therein. 3. That defendants be restrained and enjoined from further proceeding with said action filed by Talmadge Rentz against Coy Rentz and Henry Reynolds, and from taking any further steps in connection therewith until final adjudication by the court of the matters set forth herein. 4. That petitioner have such other and further relief as upon the trial of said case may appear equitable and just."
The court granted the prayers of the petition, "until further order of the court, and called upon the defendants to show why, on the 1st day of October, 1956, the restraining order should not be continued in force pending the final judgment of the matters set forth in the petition."
The amended answer of Coy Rentz reads as follows: "1. This defendant admits paragraph no. 1 of the petition.
"2. This defendant admits paragraph no. 2 of the petition except the allegation to the effect that the policy referred to in said paragraph is in this defendant's possession. This defendant has made diligent search for said policy but thus far has been unable to locate it.
"3. This defendant denies paragraph no. 3. of the petition.
"4. This defendant admits paragraph no. 4. of the petition.
"5. This defendant admits paragraph no. 5. of the petition.
"6. This defendant admits paragraph no. 6. of the petition.
"7. This defendant admits paragraph no. 7. of the petition and by way of further answer says that the filing of said answer on behalf of this defendant was done in the performance of a duty and obligation owing to this defendant by the petitioner under the provisions of said insurance policy.
"8. This defendant denies paragraph no. 8. of the petition.
"9. This defendant denies paragraph no. 9. of the petition.
"10. This defendant admits paragraph no. 10. of the petition.
"11. This defendant denies all of paragraph no. 11. of the petition except that this defendant Coy Rentz, contends that under the terms of said policy petitioner is liable to defend said suit and to pay any judgment that may be obtained against this defendant therein up to the limits of liability stated in said policy, and with the further exception that this defendant knows nothing of any controversy between petitioner and Talmadge Rentz.
"12. This defendant denies paragraph no. 12. of the petition.
"13. This defendant denies paragraph no. 13. of the petition.
"14. By way of further answer and cross-action to plaintiff's petition, this defendant says that several months ago and more than sixty days prior to the filing of this suit by petitioner, Talmadge Rentz filed said suit for damages against this defendant and Henry Reynolds; that said suit was served on this defendant on December 15, 1955, and on the following day this defendant made oral demand upon petitioner, through Mr. Theron Altman, petitioner's agent at Baxley, Georgia, to discharge its obligation to him under said insurance policy by defending him in said suit and paying any loss in the nature of any judgment rendered against him in said suit up to the limits of liability of said policy or such amount as might be paid in a negotiated settlement of said suit.
"15. That although petitioner has filed defensive pleadings on behalf of this defendant in said suit for damages brought by Talmadge Rentz, petitioner, Cotton States Mutual Insurance Company is in bad faith by now denying its liability to defend this defendant in said suit, by refusing to accept its obligation and responsibility to continue with the defense of said suit, by denying its liability to pay any judgment which may be rendered against this defendant in said case and by generally denying that it owes any duty or obligation to this defendant in connection with said suit for damages.
"16. That by reason of the allegations of paragraph no. 15, as amended, petitioner, Cotton States Mutual Insurance Co., is acting in bad faith and is being stubbornly litigious in the filing and pressing of this suit against defendant, Coy Rentz; that the alleged reason or ground for this action is frivolous and without foundation in law or in fact; that the filing of this action and pursuing it is an unwarranted and unjustified effort on the part of petitioner to avoid the performance of its duties and obligations to this petitioner under the provisions of said insurance policy.
"17. That by reason of the facts alleged in paragraphs nos. 14, 15 and 16 of this answer and cross-action, as amended, petitioner is liable to this defendant in an amount equal to twenty-five percent on the liability of said company, Cotton States Mutual Insurance Co., for the payment of any final judgment rendered against this defendant in said civil suit No. 2789 now pending in the Superior Court of Appling County, Georgia, or of any amount paid on behalf of this defendant in a negotiated settlement of said suit for damages; also, petitioner, Cotton States Mutual Insurance Co., is liable to this defendant in the amount of $500 as his reasonable attorney's fees for the prosecution of his defense to this suit.
"Wherefore, this defendant prays: (a) That upon a hearing of this matter the court declare that petitioner is liable under the provisions of said policy to defend said suit instituted by Talmadge Rentz and to pay any judgment that may be entered therein against this defendant within the limits of liability of said policy. (b) That petitioner's prayer for a declaratory judgment be denied. (c) That this defendant have and recover of petitioner, Cotton States Mutual Insurance Company, an amount equal to twenty-five percent on the liability of said company for the payment of any judgment rendered against this defendant in said civil suit no. 2789 and $500 as this defendant's reasonable attorney's fees for the prosecution of his defense to this suit. (d) That this defendant have such other and further relief as to the court seems reasonable and just."
Talmadge Rentz filed the following answer: "1. Defendant admits paragraph 1 of said complaint.
"2. Defendant for lack of sufficient information can neither admit nor deny paragraph two of said petition.
"3. In answering paragraph 3 of said petition defendant admits that Coy Rentz is a farmer living northeast of Baxley on State Highway 144, and that Coy Rentz is father of defendant and defendant is married and of age. All other allegations of said paragraph are denied.
"4. Defendant admits paragraph no. 4 of said petition except that he denies that he was directed by Coy Rentz and followed Coy Rentz's directions in getting the tractor.
"5. Defendant admits paragraph no. 5 of said petition and states he is ready to prove his injuries which were severe and permanent.
"6. Paragraph 6 is admitted.
"7. For want of sufficient information defendant can neither admit nor deny paragraph no. 7 of said petition.
"8. Defendant denies paragraph no. 8 of said petition.
"9. Defendant denies paragraph no. 9.
"10. Defendant can neither admit nor deny paragraph 10.
"11. Defendant denies paragraph 11, 12 and 13 of the petition.
"Further answering said petition this defendant shows that suit was filed in Appling Superior Court in December 1955, that the February 1956 term of said court has passed and the October term 1956 is at hand within two weeks. That plaintiff has had nearly a whole year within which to file such action and defendant says that said action is filed for the purpose only of delaying a trial for another term of this court. That plaintiff is guilty of laches in filing its present complaint. That plaintiff is not entitled to the relief sought in said petition."
The jury returned a verdict in favor of the defendants and against the plaintiff.
The plaintiff then made the following motion: "Comes now the plaintiff in the above stated case, Cotton States Mutual Insurance Company, and files this its motion and moves the court to set aside the verdict entered in favor of the defendants in the above entitled case on October 25, 1956, and enter a judgment in accordance with its motion for a directed verdict made at the close of all evidence in the case, notwithstanding such verdict, and as grounds therefor shows:
"1. At the close of all evidence in said case plaintiff made a motion that a verdict be directed by the court in its favor on the ground that the evidence would not warrant a verdict in favor of the defendants and demanded a verdict in favor of plaintiff, which said motion was overruled.
"2. That a verdict was returned by the jury on October 25, 1956, in favor of the defendants and against plaintiff.
"3. That the court erred in overruling plaintiff's timely motion made at the close of all evidence to direct a verdict in favor of plaintiff.
"Wherefore, plaintiff prays that the verdict of the jury herein as above stated, and any judgment entered thereon, be set aside and that a judgment be rendered and entered in favor of plaintiff in accordance with its motion for a directed verdict."
The court denied the motion to direct a verdict notwithstanding the judgment, whereupon the plaintiff made a motion for new trial on the general grounds and by amendment added one special ground. The court denied this motion and the case is before this court for review.
The evidence is conflicting as to the material issue in the case. The germane issue was whether or not, at the time of the alleged injury, Talmadge Rentz was an employee of his father, Coy Rentz. The defendant, on this issue, introduced evidence from Coy Rentz and Talmadge Rentz (and also evidence from other sources) that Talmadge Rentz was not, on the occasion in question, the employee of his father; that the crop season for 1954 ended in October and while Talmadge Rentz was still living with his family on his father's farm, he was not under any terms of employment with his father; that on the date of the alleged injury Talmadge Rentz had worked for someone else cutting pulpwood, and worked throughout that day until 5 p. m., at which time he went to his home and about "first dark" the father told the son to get on the truck with him. The son did this, with his father driving the truck (this being the vehicle covered by insurance). The father had driven only a short distance when the truck stopped. The son returned to the home of his father and obtained a tractor for the purpose of removing the truck from the road to the premises of Coy Rentz. Talmadge Rentz connected the back end of the tractor to the back end of the truck. When this was done Talmadge Rentz, (operating the tractor) and his father (operating the truck) started moving towards the father's home. The evidence reveals that the father in operating the truck permitted it to get slightly over the center line of the road in the direction towards the house. At this point Henry Reynolds came down the road, meeting the tractor pulling the truck, and ran into the truck and demolished it. Talmadge Rentz was thrown from the tractor and injured, and suit was brought for these injuries.
The plaintiff introduced certain statements which had been signed by Coy Rentz and Talmadge Rentz, and contends that the written statements received immediately after the accident and just before the hearing were in such conflict with testimony which they both gave at the trial as to nullify the testimony given at the trial.
1. We have studied and compared the testimony and we are convinced that the jury were authorized to return a verdict in favor of Talmadge Rentz to the effect that at the time of the alleged injury Talmadge Rentz was not an employee of his father. The general grounds are not meritorious for any of the reasons assigned by the plaintiff.
2. The one special ground reads as follows: "The court undertook to charge Code § 38-107 with reference to a determination of where the preponderance of evidence lies and did give in charge portions of said section, the court charged as follows: `In determining where the preponderance of the evidence lies the jury may consider all the facts and circumstances of the case; the witnesses' manner of testifying; their intelligence; their interest or want of interest in the result of the case; their bias or prejudice, if any appears; their means and opportunity of knowing the facts about which they testified and also their personal credibility so far as same may legitimately appear upon the trial of the case. The jury may also consider the number of witnesses but the preponderance is not necessarily with the greater number.'
"The court in so charging entirely omitted that portion of said Code section reading: `The nature of the facts to which they testified, and the probability or improbability of their testimony.'
"The Code section which the court undertook to charge and the law with respect to the determination of where the preponderance of evidence lies, is as follows: `In determining where the preponderance of evidence lies, the jury may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, the nature of the facts to which they testified, and the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may appear from the trial. The jury may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.' The court did not elsewhere in its charge to the jury undertake to charge on the determination of where the preponderance of evidence lies, nor elsewhere in its charge, charge the jury said omitted portion of said Code section in instructing the jury as to the determination of the preponderance of evidence.
"The court having undertaken to charge on the determination of where the preponderance of evidence lies, it was the duty of the court to instruct the jury fully and completely with respect thereto, and not to charge certain portions of said Code section, omitting that portion reading: `The nature of the facts to which they testified and the probability or improbability of their testimony', and the court erred in so doing, which said error was contrary to law, to the prejudice, damage and injury of movants, and entered into the final verdict and judgment in this case."
The court charged: "Now, the burden rests upon the plaintiff to satisfy the jury of the truth of their case by a preponderance of the evidence. By a preponderance of the evidence is meant that superior weight of the evidence upon the issues involved, which while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other. In determining where the preponderance of the evidence lies the jury may consider all the facts and circumstances of the case; the witnesses' manner of testifying; their intelligence; their interest or want of interest in the result of the case; their bias or prejudice if any appears; their means and opportunity for knowing the facts about which they testify, and also their personal credibility so far as the same may legitimately appear upon the trial of this case. The jury may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. Where in the opinion of the jury the evidence on each side [is] equally credible, and where the jury believe the evidence as strong on one side as on the other, then the preponderance of the evidence would not be carried, and in such case it would be the duty of the jury to return a verdict in favor of the defendants."
Counsel for the plaintiff call our attention to and rely on the following decisions: Renfroe v. Hamilton, 193 Ga. 194 (2) ( 17 S.E.2d 709); Turner v. Joiner, 77 Ga. App. 603 ( 48 S.E.2d 907), and Smith v. Harrison, 92 Ga. App. 576 ( 89 S.E.2d 273). Under the record, including the entire charge of the court in the instant case, a casual reading of the last three cases cited discloses that those cases are not in conflict with, and not binding authority for the ruling in the instant case. In our opinion the assignment of error here is controlled by State Highway Board v. Bridges, 60 Ga. App. 240 (4) ( 3 S.E.2d 907), where this court said: "Where, in charging Code § 38-107, the judge omits the words, `the nature of the facts to which they testified, and the probability or improbability of their testimony,' in immediate connection with the other provisions thereof, yet where the language of the charge as a whole is sufficient to convey the meaning and application of the principle, the omission is cured." The charge of the court as a whole cured the error assigned in the special ground; therefore the special ground is not meritorious under the record in this case.
The court did not err in denying the motion for a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.