Brinks, Inc. v. Robinson

• Decision Date: 05 December 1994
• Docket Number: No. A94A1754,A94A1754
• Citation: Brinks, Inc. v. Robinson, 452 S.E.2d 788, 215 Ga.App. 865 (Ga. App. 1994)
• Parties: BRINKS, INC. v. ROBINSON.
• Court: Georgia Court of Appeals

Page 788

452 S.E.2d 788

215 Ga.App. 865

BRINKS, INC. v.ROBINSON.

No. A94A1754.

Court of Appeals of Georgia.

Dec. 5, 1994.

Reconsideration Denied Dec. 20, 1994.

Self, Mullins, Robinson & Marchetti, Richard A. Marchetti, Columbus, for appellant.

Charles A. Gower, Denney, Pease, Allison, Kirk & Lomax, John W. Denney, Taylor & Harp, Jefferson C. Callier, Columbus, for appellee.

McMURRAY, Presiding Judge.

This is an action for damages arising from two motor vehicle collisions.Sheila Robinson(plaintiff) seeks damages for injuries arising from a collision in Columbus on December 31, 1990, between a vehicle in which she was a passenger and an armored truck operated by Brinks, Inc.("Brinks").Plaintiff also seeks damages for injuries suffered on April 29, 1991, when a car she was driving collided with a vehicle operated by defendant Cowling.The case was tried before a jury which returned a verdict in favor of plaintiff.The judgment provides that plaintiff recover $25,000 from defendant Cowling and $850,000 from defendant Brinks, plus interest and costs.Only the defendant Brinks has appealed.Held:

1.Brinks enumerates as error the trial court's joinder of partiesdefendant and claims against successive tortfeasors.Plaintiff's complaint alleges that Brinks and Cowling were joint tortfeasors because their actions combined to produce a single indivisible injury.SeeGilson v. Mitchell, 131 Ga.App. 321, 205 S.E.2d 421, aff'd, Mitchell v. Gilson, 233 Ga. 453, 211 S.E.2d 744.The trial court denied Brinks' motion to sever based upon misjoinder of parties and also denied Cowling's motion to transfer for improper venue.

The Civil Practice Act provides for permissive joinder of parties and claims as follows: "All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded.Judgment may be given ... against one or more of the defendants according to their respective liabilities."(Emphasis supplied.)OCGA § 9-11-20(a).If they were joint tortfeasors, the defendants in this case could have properly been sued jointly despite their residing in different counties.Ga. Const. 1983, Art. VI, Sec. II, Par. VII.

However, these defendants were not joint, but successive tortfeasors.The defendants did not act in concert, the acts of negligence involved were separated by several months, and the plaintiff did not suffer an indivisible injury.Plaintiff having survived the separate wounds inflicted upon her, a basis for division exists and no matter how difficult the proof may be, the torts are several.Posey v. Med. Center-West, 257 Ga. 55, 56, 354 S.E.2d 417;Knight v. Lowery, 228 Ga. 452, 455, 185 S.E.2d 915;Gay v. Piggly Wiggly Southern, 183 Ga.App. 175, 178-181(2, 3), 358 S.E.2d 468;Phillips v. Tellis, 181 Ga.App. 449, 450, 352 S.E.2d 630;Gilson v. Mitchell, 131 Ga.App 321, 325, 205 S.E.2d 421, supra.The two separate accidents are insufficiently connected to constitute a "series of occurrences" giving rise to plaintiff's claims.

We cannot agree with the dissent's reliance on the Supreme Court's decision in Polston v. Boomershine Pontiac-GMC Truck, 262 Ga. 616, 423 S.E.2d 659 to find otherwise.As the dissent notes, defendants in a "crashworthiness" case are properly sued as joint tortfeasors in that one accident is conceptually comprised of two collisions: A vehicle initially collides with another vehicle, after which a plaintiff experiences a so-called "second collision" with the ground or with interior parts of his vehicle.The two collisions are inextricably linked in a "series of occurrences."Thus, unlike the case sub judice, in "crashworthiness"cases alleged negligence of a defendant manufacturer and a defendant driver converge at the time of a single accident so that they logically constitute a "series of occurrences" in satisfaction of the first prong of OCGA § 9-11-20(a).Similarly, in Gilson v. Mitchell, 131 Ga.App. 321, 205 S.E.2d 421, supra, aff'd233 Ga. 453, 211 S.E.2d 744, supra, cited by the Supreme Court in support of its analysis in Polston and by the dissent herein, separate acts of negligence by three doctors in connection with using a central venous pressure catheter in plaintiff's right external jugular vein during his hospitalization for stomach surgery converged in the harm of subjecting the plaintiff to unnecessary medical procedures and mental distress, thus constituting a "series of occurrences."In the case sub judice, however, the plaintiff was involved in separate accidents four months apart involving different vehicles, and different circumstances.The alleged acts of negligence by Brinks and Cowling are not sufficiently connected to constitute a "series of occurrences" within the meaning of OCGA § 9-11-20(a).To allow joinder of plaintiff's claims over objection by either defendant is to disregard the first requirement for permissive joinder.To force Brinks and Cowling to defend plaintiff's claims in a single action is to exceed the direction pointed by the Supreme Court in Polston.Indeed, such a holding would invite plaintiffs to join any number of disconnected and unrelated wrongdoers in one action by alleging that the "series" of alleged intentional or negligent acts caused them emotional distress, mental injury, or other intangible, "indivisible" harm.

The dissent reasons that improper joinder in this case has worked no harm to Brinks that would not necessarily recur at a second trial.However, "it is not essential for defendants to prove prejudice for if joinder is not authorized by the plain language of the statute, no amount of judicial economy can justify it."Howard Motor Co. v. Swint, 214 Ga.App. 682, 683, 448 S.E.2d 713;see alsoCincinnati Ins. Co. v. Reybitz, 205 Ga.App. 174, 175(1), 179(c), 421 S.E.2d 767("goal of judicial economy cannot justify sacrificing the rights of the parties").Plaintiff not having satisfied the first requirement for permissive joinder of parties under OCGA § 9-11-20(a), she must bring separate actions against the successive tortfeasors.Accordingly, the trial court abused its discretion by denying Brinks' motion to severplaintiff's claims for misjoinder of parties and as to defendant Brinks, we reverse.CompareVitner v. Funk, 182 Ga.App. 39, 40(1), 354 S.E.2d 666.

2.In light of our decision in Division 1, it is not necessary to address Brinks' enumeration that the court erred in instructing the jury to apportion damages as between joint tortfeasors in a personal injury action, and entered an illegal judgment on the jury's verdict.We address those evidentiary matters likely to recur on retrial of this case, however.

3.Brinks next argues the trial court erred in allowing plaintiff's treating chiropractor to offer an opinion as to which of the two collisions was responsible for the injury to her right hip and sacroiliac." 'The question of whether a witness is qualified to give his opinion as an expert is one for the court.(Cit.)His determination will not be disturbed except that it be manifestly abused.'[Cits.]"City of Fairburn v. Cook, 188 Ga.App. 58, 67(10), 372 S.E.2d 245.

The Supreme Court's decision in Chandler Exterm. v. Morris, 262 Ga. 257, 416 S.E.2d 277, cited by Brinks, does not control this issue.In that casethe court held a psychologist was not qualified to offer an opinion concerning the medical or organic causation of mental dysfunction.Here, the chiropractor's opinion concerned the relationship between his patient's symptoms and the relative impacts to which she had been subjected in two automobile collisions, a matter logically within his expertise.The chiropractor had treated numerous accident victims, had seen the plaintiff on some 50 visits and was thus competent to offer an opinion as to which impact caused the injury to her right hip and sacroiliac.

Brinks also argues the trial court erred when it questioned the chiropractor about his education and qualifications so as to bolster that witness' credibility.In response to Brinks' objection at the bench, however, the trial court explained to the jury that it had no opinion about the case or the witness' credibility and simply asked the questions so the jury might know the chiropractor's background.The final charge to the jury also included a curative instruction that "[n]othing that I do or say during the trial of this case was intended to hint, suggest, or somehow communicate to you in some way or another which party should prevail in this matter.""[I]n the absence of clear evidence to the contrary, qualified jurors, under oath, are presumed to follow the instructions and procedural directives of the trial court.[Cit.] ... Nothing contained on the face of this record is so compellingly erroneous as to preclude the jury from following this curative instruction, and we note that [Brinks] entered no exception to the curative instruction at the conclusion of the court's charge."Harris v. State, 202 Ga.App. 618, 619(3a), 620, 414 S.E.2d 919.

4.The trial court did not abuse its discretion in allowing one of plaintiff's treating psychologists to testify at trial upon one day's notice to Brinks when Brinks had the psychologist's office notes and was aware well before trial that she had treated the plaintiff in association with Dr. Falls, whose deposition testimony was read to the jury.City of Monroe v. Jordan, 201 Ga.App. 332, 335(4), 336, 411 S.E.2d 511.

5.The trial court did not err in admitting, over Brinks' hearsay objection, the office notes of plaintiff's psychologist Dr. Falls containing observations and conclusions of his associate Dr. Angela Register, who...