Atlanta Coca-Cola Bottling Co. v. Jones

Decision Date11 March 1976
Docket NumberCOCA-COLA,No. 30351,30351
Citation236 Ga. 448,224 S.E.2d 25
PartiesATLANTABOTTLING COMPANY et al. v. Jack JONES.
CourtGeorgia Supreme Court

Hurt, Richardson, Garner & Todd, T. Cullen Gilliland, J. Robert Persons, Atlanta, for appellant.

Rich, Bass, Kidd & Witcher, Casper Rich, Decatur, for appellee.

GUNTER, Justice.

We granted this application for a writ of certiorari to review the decision and judgment of the Court of Appeals in Atlanta Coca-Cola Bottling Co., et al. v. Jones, 135 Ga.App. 362, 218 S.E.2d 36 (1975). We granted the writ for the purpose of determining whether the Court of Appeals committed error in affirming the grant by the trial court of a motion for directed verdict on the issue of liability in a rear-end vehicle collision case.

This court's concern emanates from the apparent trend in the trial courts and the Court of Appeals to remove from the jury, and to place in trial judges and appellate judges, the power to determine liability in rear-end collision cases.

In this case a jury was impaneled and heard evidence. At the close of the evidence, the trial judge directed a verdict in favor of the plaintiff on the issue of liability and submitted to the jury the issue of recoverable damages. The Court of Appeals affirmed the directed verdict as to liability and relied on a series of cases that apparently had their inception in the summary judgment area with the rendition of the decision in Pike v. Stafford, 111 Ga.App. 349, 141 S.E.2d 780 (1965). That case, citing Powers v. Pate, 107 Ga.App. 25, 27, 129 S.E.2d 193 (1962), stated the general rule: 'Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.' 111 Ga.App. p. 350, 141 S.E.2d p. 781. After stating this general rule the court then went on to say: 'The evidence of the parties' actions in this case, however, shows negligence on the part of the defendant without contradiction and does not make a genuine issue on the pleaded defense of negligence on the part of the plaintiff.' (Emphasis supplied.) 111 Ga.App. p. 350, 141 S.E.2d p. 781.

In Malcom v. Malcolm, 112 Ga.App. 151, 144 S.E.2d 188 (1965), the Court of Appeals held that the trial court committed error in granting a summary judgment in favor of the plaintiff on the issue of the defendant's liability in a rear-end collision case. No reference was made in Malcom to the decision in Pike.

It appears from our research that the first case involving a rear-end collision in which a directed verdict of liability was rendered upon the trial of the case was Sutherland's Eggs, Inc. v. Barber, 116 Ga.App. 393, 394, 157 S.E.2d 491 (1967). Sutherland's Eggs followed Pike and distinguished Malcom by saying: 'Nothing held herein is in conflict with Malcom v. Malcolm, 112 Ga.App. 151, 144 S.E.2d 188, where there was evidence that the plaintiff made a sudden stop.' 116 Ga.App. p. 394, 157 S.E.2d p. 193.

In Rosenfeld v. Young, 117 Ga.App. 35, 159 S.E.2d 447 (1967), the Court of Appeals affirmed the direction of a verdict on the question of liability in a rear-end collision case and relied for that decision on Pike v. Stafford, supra, and Sutherland's Eggs, Inc. v. Barber, supra.

In Malone v. Ottinger, 118 Ga.App. 778, 165 S.E.2d 660 (1968), a summary judgment case, the Court of Appeals followed Sutherland's Eggs and Pike, and it distinguished Malcom.

In Johnson v. Curenton, 127 Ga.App. 687, 195 S.E.2d 279 (1972), the Court of Appeals

affirmed a directed verdict on the question of liability in a rear-end collision case and relied on Sutherland's Eggs and Rosenfeld. The opinion also cited Pike v. Stafford, supra, and Malone v. Ottinger, supra, as being summary judgment cases affirmed on the same principle as the directed verdict cases. The Johnson opinion distinguished Harper v. Plunkett, 122 Ga.App. 63, 176 S.E.2d 187 and Roesler v. Etheridge, 125 Ga.App. 358, 187 S.E.2d 572 on factual differences, but then said: 'We prefer however to differentiate these two cases because they involved summary judgment motions, whereas here we are passing upon a directed verdict.' The opinion then said that the rule concerning construction of a party's testimony in a summary judgment decision is different from the rule in directed verdict cases. 127 Ga.App. pp. 689, 690, 195 S.E.2d p. 281.

In Glaze v. Bailey, 130 Ga.App. 189, 190, 202 S.E.2d 708, 710 (1973), the Court of Appeals affirmed a directed verdict on the issue of liability in a rear-end collision case and relied on Pike, Sutherland's Eggs, Rosenfeld, and Johnson saying that they 'more nearly fit the situation here than O'Neil v. Moore, 118 Ga.App. 424, 429, 164 S.E.2d 328, or Thomason v. Willingham, 118 Ga.App. 821, 822(1), 165 S.E.2d 865.'

These cited cases, including the case at bar, indicate to us the decided trend in rear-end collision cases toward removing the power to determine liability from the jury and placing the power in a trial or appellate court.

In Hay v. Carter, 94 Ga.App. 382, 384, 94 S.E.2d 755, 757, the Court of Appeals quoted from Judge Hutcheson's opinion in Cardell v. Tennessee Electric Power Co., 79 F.2d 934, 936 (5 Cir.) (1935). We also quote from Judge Hutcheson's opinion here: 'All drivers of vehicles using the highways are held to the exercise of due care. A leading vehicle has no absolute legal position superior to that of one following. Each driver must exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to following vehicles of his intention so to do. The driver of the following vehicle, in his turn, must exercise ordinary care to avoid collision with vehicles, both those in front and those behind him. Just how close to a vehicle in the lead a following vehicle, ought, in the exercise of ordinary care, be driven, just what precautions a driver of such a vehicle must in the exercise of ordinary care take to avoid colliding with a leading vehicle which slows, stops, or swerves in front of him, just what signals or warnings the driver of a leading vehicle must, in the exercise of due care, give before stopping or slowing up of his intention to do so, may not be laid down in any hard and fast or general rule. In each case except when reasonable minds may not differ, what due care required, and whether it was exercised, is for the jury.'

We conclude that 'reasonable minds' rarely agree on the issue of liability in rear-end collision cases. Of course, where there is no dispute as to the facts, and they amount to a confession of liability as a matter of law, a directed verdict is warranted. But this is not such a case; such cases are rare, and without an admission of liability or an indisputable fact situation that clearly establishes liability, it is error for the trial judge to direct a verdict on the issue of liability in favor of either party.

In rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence, and proximate cause. The history of the decisions of the Court of Appeals in this type of case since 1965 convinces us that these issues should be resolved, except in the very rare cases referred to above, by the jury and not by trial and appellate judges.

A reading of the transcript of the trial in the case at bar also convinces us that had the trial judge denied the motion for a directed verdict, submitted the issue of liability to the jury, and had the jury rendered a verdict in favor of the defendant that verdict would have had to be sustained on the basis of the evidence adduced before the jury. The trial judge himself made the decision as to liability, the record showing that he made it somewhat reluctantly, and thereby prevented the jury from deciding this issue. We hold that he invaded the province of the jury, and this was error requiring a new trial.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judgment reversed.

All the Justices concur, except HALL, J., who dissents.

HALL, Justice (dissenting).

I dissent to the grant of certiorari and the reversal of the judgments of the trial court and the Court of Appeals.

This is a routine 'rear end' collision case in which there has never been any disagreement among the trial court, the Court of Appeals, the Supreme Court nor the parties in litigation over any principle of law. Wynne v. Southern Bell Tel. & Tel. Co., 159 Ga. 623, 126 S.E. 388 (1925); Powell v. Berry, 145 Ga. 696, 89 S.E. 753 (1916); Wakefield v. A. R. Winter Co. Ins. Co., 121 Ga.App. 259, 174 S.E.2d 178 (1970); Chotas v. J. P. Allen & Co., 113 Ga.App. 731, 149 S.E.2d 527 (1966). Therefore, there is absolutely no reason for certiorari to have been granted in this case. Furthermore, the principles of law discussed in the majority opinion are not limited to 'rear end' collision cases. They apply as well to 'front end' collision cases, 'side' collision cases and to any other possible negligence issue in existence in the entire tort law area. Nothing new is said in that opinion.

This Court granted certiorari by a vote of four to three. The only question which the four prevailing Justices wished to consider on certiorari was whether the Court of Appeals properly construed the facts. Counsel for both parties devoted their entire oral arguments to the facts. Neither of them cited a single decision in their arguments for the simple reason that the law was crystal clear.

Since 1916 when the Constitution was amended to allow the Supreme Court to exercise discretionary review of a decision of the Court of Appeals by writ of...

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