Atlanta Joint Terminals v. Knight

• Decision Date: 14 October 1958
• Docket Number: No. 37247,2,Nos. 1,37247,s. 1
• Citation: 79 A.L.R.2d 539,106 S.E.2d 417,98 Ga.App. 482
• Parties: , 79 A.L.R.2d 539 ATLANTA JOINT THRMINALS, etc. v. L. P. KNIGHT
• Court: Georgia Court of Appeals

Page 417

106 S.E.2d 417

98 Ga.App. 482, 79 A.L.R.2d 539

ATLANTA JOINT THRMINALS, etc. v. L. P. KNIGHT.

No. 37247.

Court of Appeals of Georgia, Division Nos. 1, 2.

Oct. 14, 1958.

Rehearing Denied Oct. 30, 1958.

Syllabus by the Court

1. Whether or not on the trial in a State court of a case under the Federal Employers' Liability Act a party may call particular employees of the opposite party as witnesses for cross-examination under the provisions of Code, § 38-1801 is a question of procedure to be governed by the law of the forum rather than by the Federal substantive law.

2. Code, § 38-1801 providing in part that either party shall be permitted to make the opposite party, or any officer or agent of a corporation which is an opposite party, a witness for the purpose of cross-examination, is broad enough to include the employees of the defendant who were called as witnesses for cross-examination by the plaintiff in this case.

3. Evidence of the defective condition of the sand pipe at times before and after the injury complained of was sufficiently connected with the injury and the condition of the pipe at that time, and the trial judge did not abuse his discretion in permitting the introduction of such evidence.

4. While the questions which may be propounded to prospective jurors under the provisions of Code, § 59-705 are largely within the discretion of the court, and may include any matter or thing which would illustrate any interest of the juror in the cause, or any fact or circumstance indicating any inclination, leaning or bias, which the juror may have respecting the subject matter of the suit, nevertheless hypothetical questions involving evidence should be excluded, and no question should be so framed as to require a response from the juror which might amount to a prejudgment of the case. Certain questions here propounded which were subject to these defects were properly ruled out on objection. Other questions, which were permitted to be answered, were either proper or did not constitute harmful error in view of the fact that such questions went to the size of a possible verdict and the verdict as actually rendered was only about 13% of the amount sued for and concerning which the questions were propounded.

5. Although the conduct of counsel as complained of in this special ground was improper, the immediate action of the trial court in cautioning the jury and in rebuking counsel constituted sufficient corrective action, and it was not thereafter error to deny the motion for mistrial made on this ground.

6. Grounds of the motion which complain of matters rectified by instructions and action taken in the trial court and which fail to show that any ruling of the trial court was invoked with regard thereto do not show error. The general grounds having been abandoned (and one special ground in amplification thereof) are not passed upon.

L. P. Knight sued the Atlanta Joint Terminals, a partnership consisting of several named railroad companies, for damages for personal injuries alleged to have been received by him while in their employ on December 23, 1951. It was alleged that the defendants operated a railroad yard in the City of Atlanta where the plaintiff was employed as a hostler's helper. In the petition as amended, the plaintiff contended that while he and his co-worker, the hostler, were engaged in servicing a locomotive by supplying it with fuel, oil, water and sand preparing it for a road assignment he was injured when he struck his head on an allegedly defective sand spout or pipe underneath the sand house in the defendants' yards while he was about to replenish the supply of sand in the sand boxes of the locomotive. It was contended that as a result of this blow, the plaintiff suffered permanent and totally disabling injuries, including the permanent loss of vision to his right eye, injury to his back, and mental and nervous disorders resulting from the blow on his head. The injuries were alleged to have been the result of various acts of negligence of the defendants and their agents. The defendants answered the original petition denying all material allegations respecting the injuries of the plaintiff and the cause thereof and alleging therein that the plaintiff's injuries if any, were the result of his own negligence. After the petition had been amended several times, adding additional counts and increasing the damages prayed for from $100,000 to $300,000, the case went to trial in the Superior Court of Fulton County before a judge and a jury and resulted in a verdict for the plaintiff in the amount of $40,000. The defendants made a motion for new trial on the usual general grounds which they amended by the addition of 13 special grounds, and the exception here is to the denial of that motion.

Maurice N. Maloof, Robert G. Young, Herman Heyman, Heyman, Abram & Young, Atlanta, for plaintiff in error.

Reuben A. Garland, J. Walter LeCraw, Atlanta, for defendant in error.

TOWNSEND, Judge.

The first five special grounds of the motion for a new trial, numbered 4 through 8, inclusive, assign error on rulings of the trial court in permitting counsel for the plaintiff to put certain employees of the defendant on the stand for the purpose of cross-examination under the provisions of Code, § 38-1801. Each of these grounds of the motion for a new trial complain of separate rulings by the court with respect to five different witnesses. As to each witness the defendants interposed objections to the corss-examination of the witness as agents of the defendants on the grounds that the employee was not an 'agent' of the defendants as that term is used in Code, § 38-1801; and, secondly, because this action being one under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the Federal law, under which the plaintiff has no such right, rather than the State law, was applicable. We shall dispose of these contentions in the inverse order in which they are made.

1. Rules of evidence prescribed by the General Assembly or laid down by judicial decision and prescribing what evidence is admissible or inadmissible, the quantum of proof necessary in given cases and the manner of producing and introducing evidence, and like rules, are rules of procedure rather than of substance. Such rules define and set out the manner and method of going ahead and conducting the suit and of enforcing the right as distinguished from rules of law defining the right itself. Intagliata v. Shipowners & Merchants Towboat Co., Cal.App., 151 P.2d 133, 138. Such rules are governed by the law of the forum. 31 C.J.S. Evidende § 5, p. 509. The procedure to be followed in the trial of cases brought in State courts under the Federal Employers' Liability Act is the procedure prescribed in the jurisdiction where the case is brought rather than the form of practice and procedure prescribed for the Federal courts. Brenizer v. Nashville, C. & St. L. Railway, 156 Tenn. 479, 3 S.W.2d 1053, 8 S.W.2d 1099. It follows that whether or not the plaintiff could call employees of the defendants as their agents and subject them to cross-examination under the provisions of Code, § 38-1801 is a question of procedure in the State court and is to be governed by the rules and procedure laid down by the Georgia law rather than by the Federal rules.

2. A determination of the second question as stated above depends as contended by counsel for the plaintiff in error on whether the persons called for cross-examination were in fact agents of the defendant corporation within the meaning of that word as used in Code, § 38-1801. That Code section provides that in the trial of all civil cases either the plaintiff or the defendant shall be permitted to make, in the case of corporations, any agent or officer a witness with the privilege of subjecting such witness to a thorough and sifting cross-examination and with the further privilege of impeachment as if the witness has testified in his own behalf and were being cross examined. As applied to the facts of this case, there can be no doubt that the meaning and intent of the legislature in the use of the word 'agent' in this Code section is doubtful so as to require judicial construction of this language. This necessity of construction was recognized in Garmon v. Cassell, 78 Ga.App. 730, 739(6), 52 S.E.2d 631, 637, where this court expressly rejected the contention that this language refers only to an agent who was an agent of the party with relation to, or who had some connection with, the particular transaction under investigation. In that case, Judge Felton, speaking for the first division, said, 'We find no support for such a contention. The act itself makes no limitation.'

All of the witnesses involved were, at the time of the occurrence complained of and at the time of the trial, employees of the defendant or of one of the corporate partners of the defendant, and, as such, were subject to all of the pressures and possible prejudices in favor of the defendant which that relationship would tend to engender.

All or any one of these employees might have been used by the defendants when the trial of the case progressed to the point at which they would present their evidence. Therefore, cross-examination of such employees as agents of the defendants under Code, § 38-1801 was proper. These assignments of error are without error.

3. In grounds 9 and 10 of the motion for new trial, error is assigned on the admission in evidence over proper and timely objection by the defendant of the testimony of the witness Lazenby elicited by the plaintiff on cross-examination to the effect that the sand pipe under the sand house through which sand is directed into the sand boxes of the engines was defective so that it hung down three or four feet below its intended position on certain occasions prior to and after the occurrence complained of in this action. This evidence was objected to on the ground that it was...