Bellamy v. Edwards, 73400

• Decision Date: 12 February 1987
• Docket Number: No. 73400,73400
• Citation: 354 S.E.2d 434,181 Ga.App. 887
• Parties: BELLAMY v. EDWARDS et al.
• Court: Georgia Court of Appeals

Page 434

354 S.E.2d 434

181 Ga.App. 887

BELLAMY v. EDWARDS et al.

No. 73400.

Court of Appeals of Georgia.

Feb. 12, 1987.

Rehearing Denied Feb. 27, 1987.

Certiorari Denied April 9, 1987.

Burt DeRieux, Gregory J. Digel, Atlanta, Cathleen M. Devlin, for appellant.

W. Carl Reynolds, Charles M. Cork, Macon, Eugene O'Brien, Decatur, Edgar L. Crossett III, Atlanta, for appellees.

CARLEY, Judge.

Mr. and Mrs. Edwards, the appellee-plaintiffs in the instant appeal, were injured when another vehicle collided with theirs at an intersection. They brought suit against Mitchell, the driver of the other vehicle, and against appellant-defendant Bellamy. The case was tried before a jury and evidence was adduced which authorized a finding that, for several miles prior to the collision, appellant and Mitchell had been driving their respective vehicles toward a common destination, at speeds of 80 miles per hour or more, with Mitchell following closely behind appellant. The evidence also authorized a finding that appellant and then Mitchell disregarded a stop sign and drove through the intersection at a high rate of speed within one car-length of each other. Appellant cleared the intersection but Mitchell collided with appellees. On this evidence, the jury returned joint and several verdicts in favor of appellees against Mitchell and appellant. Appellant appeals from the judgments entered on the jury's verdicts.

1. Appellant enumerates as error the refusal of the trial court to direct a verdict in his favor. He asserts that, in the absence of proof that he and Mitchell were "racing" in violation of OCGA § 40-6-186, there is no legal basis for holding him liable for a collision in which his vehicle was not actually involved.

The basis for imposing liability upon a racer for the damages resulting from a collision involving only his co-racer's vehicle is that " 'two or more persons engaged in a common enterprise are jointly liable for wrongful acts done in connection with the enterprise, at least where the enterprise is an unlawful one, in which case all are answerable for any injury done by any one of them.... [W]here two persons are jointly engaged in an unlawful enterprise, and each performs a wrongful act in pursuit of such purpose, one of which acts causes an injury, the parties may be held jointly and severally liable....' [Cits.]" Hood v. Evans, 106 Ga.App. 360, 363, 126 S.E.2d 898 (1962) (On Motion for Rehearing). Although we find no Georgia case which clearly applies the "unlawful enterprise" principle other than in the context of "racing," we also find no authority holding that its application is necessarily limited only to instances of "racing." Indeed, the "unlawful enterprise" rationale is readily construable as a mere corollary of the general legal principle that, "if the negligent act of a person is according to human experience calculated to induce or invite disaster through the negligence of another," he is liable for the damage caused thereby. Smith v. Harrison, 92 Ga.App. 576, 582(5), 89 S.E.2d 273 (1955).

Even assuming without deciding that appellant is correct that the evidence would not authorize a finding that he and Mitchell were technically "racing" as defined in OCGA § 40-6-186(a)(2), the evidence nevertheless authorized a finding that he drove recklessly and at excessive speeds, disregarded a stop sign, and that, by so doing, he encouraged Mitchell to do the same and thus acted in conjunction with Mitchell. Under factually similar circumstances, the Supreme Court of Wisconsin has held that "when there is an understanding to reach a common destination and in doing so illegal speed is used and the cars are driven so closely together as to be practically in tandem, or to constitute a unit, ... we have a situation of mutual stimulation where the negligence of each participant is so related to the negligence of the other participants that the participants should each be chargeable with the causal negligence of the other as to speed...." Ogle v. Avina, 33 Wis.2d 125, 146 N.W.2d 422, 427 (1966). The reasoning of the Wisconsin court is persuasive, and we find it applicable in the case sub judice under the principles set forth both in Hood v. Evans, supra, and in Smith v. Harrison, supra. A "common enterprise" to drive two cars in tandem at excessive speeds and in a reckless manner is as much a tacit "unlawful joint enterprise" to violate the traffic laws of this State as an agreement to engage in "racing." Under the evidence, that it was Mitchell rather than appellant who collided with the appellees was a mere fortuity. Had appellant not been speeding and had he obeyed the stop sign at the intersection, the collision presumably would not have occurred. Instead, knowing that Mitchell was following his lead, appellant sped into the intersection with the result that the appellees were seriously injured in the resulting collision with Mitchell. Accordingly, the jury in this case could have found that the conduct of appellant and Mitchell constituted an unlawful joint enterprise which proximately caused appellees' injuries.

Appellant premised his motion for directed verdict solely on the contention that, absent evidence of "racing," he could not be held liable. For the reasons discussed above, evidence of an unlawful enterprise other than "racing" authorized the imposition of liability against appellant for the collision. Therefore, the trial court did not err in denying appellant's motion for a directed verdict.

2. Appellant enumerates as error the giving of jury instructions that he could be found liable to appellees if he drove too fast for conditions, drove recklessly, or disregarded a stop sign, and such violations proximately caused the collision. As discussed in Division 1, appellant's liability was predicated upon his participation in an "unlawful enterprise." The charges were based upon evidence of appellant's in tandem traffic violations and were correct statements of the law. There was no error. See generally Dept. of Transp. v. 19.646 Acres of Land, 178 Ga.App. 287, 288(2), 342 S.E.2d 760 (1986).

3. The trial court's charge to the jury regarding the duties of a driver to stop or to return to the scene of a vehicular collision is enumerated as error. Appellant asserts that these duties apply only to the drivers of the vehicles which actually collide. No authority is cited for this proposition and we find none. The statutory duties apply to a driver who is "involved" in a collision. See OCGA §§ 40-6-270; 271. The jury was clearly authorized to find that appellant was "involved" in the collision at issue.

Appellant further contends that the instruction was erroneously given because any failure on his part to return to the scene of the collision could not have been the proximate cause of any of appellees' damages. Although appellant's conduct in leaving the scene bore no causal connection to the collision, the jury was authorized to consider it "in connection with his other acts preceding the injury, as tending to establish his conduct in causing the injury as being negligence." Battle v. Kilcrease, 54 Ga.App. 808(1), 189 S.E. 573 (1936). Moreover, appellant's subsequent conduct in this regard was relevant to the issue of punitive damages. Battle v. Kilcrease, supra at 809(3, 4), 189 S.E. 573. The trial court did not err in giving the charge.

4. The giving of a charge on tampering with evidence is enumerated as error. There was slight evidence authorizing a finding that, subsequent to the collision, appellant had tampered with the evidence by planting a cooler and some beer cans in appellees' truck. This evidence was relevant to the issue of punitive damages. Georgia Power Co. v. Hinson, 179 Ga.App. 263, 266-67(2), 346 S.E.2d 73 (1986). Contrary to appellant's assertion, the trial court did not instruct the jury that an act of tampering with the evidence would be relevant to the issues of proximate cause and liability.

5. Appellant enumerates as error the trial court's refusal to strike testimony regarding the alleged discovery of drugs at the scene of the collision and in Mitchell's vehicle. At the scene, police allegedly discovered nine tablets of diazepam, or Valium, designed to resemble methaqualone (Quaalude) tablets. The following day, a bag of marijuana was found in Mitchell's truck. Appellant's sole contention regarding the inadmissibility of the evidence is that the respective chains of custody of the drugs were incomplete. See Atlanta Coca-Cola Bottling Co. v. Burke, 109 Ga.App. 53(1), 134 S.E.2d 909 (1964).

The chain of custody for seven of the nine tablets was not proven and, other than nonprobative hearsay, there was no evidence produced to show that those seven tablets were found at the scene. However, the chains of custody for the remaining two tablets and for the marijuana were complete, and those drugs were linked to Mitchell and the collision. Under these circumstances, the seven tablets were merely cumulative of other evidence of drugs and any error in their admission over the chain of custody objection must be viewed as harmless. See generally Foster v. Morrison, 177 Ga.App. 250, 251-252(4), 339 S.E.2d 307 (1985).

6. The trial court's charge with respect to the offense of driving under the influence is enumerated as error. The contention is that ...