Butts v. Davis, 47045

• Decision Date: 16 May 1972
• Docket Number: No. 3,No. 47045,47045,3
• Citation: 126 Ga.App. 311,190 S.E.2d 595
• Parties: Robert L. BUTTS v. Ronnie DAVIS et al
• Court: Georgia Court of Appeals

Page 595

190 S.E.2d 595

126 Ga.App. 311

Robert L. BUTTS v. Ronnie DAVIS et al.

No. 47045.

Court of Appeals of Georgia, Division No. 3.

May 16, 1972.

Mullis, Reynolds & Marshall, Gerald S. Mullis, Hall & Bloch, S. Phillips Brown, Macon, for appellant.

Jones, Cork, Miller & Benton, E. Bruce Benton, George T. Williams, Macon, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal is by plaintiff following a verdict for defendants in a suit for personal injuries and property damage between motor vehicles with defendant having counterclaimed. The respective versions of the occurrence as presented during the trial are in direct conflict with the jury having rendered a 'dog-fall verdict' reading 'We the jury find in favor of the defendants. Both parties equal negligence.' This verdict was made the court's judgment and followed by plaintiff's motion for new trial which was denied after amendment. As there are twenty enumerations of error which range from the inception of the case through the judgment from which this appeal is taken we will limit our recital of facts to those pertinent to the various enumerations of error separately dealt with in this opinion.

1. The first enumeration averring that the trial court committed error in overruling the amended new trial motion is not argued. Accordingly, it is deemed abandoned. Jordan v. State, 124 Ga.App. 135(1), 183 S.E.2d 54; Corbin v. Gulf Life Ins. Co., 125 Ga.App. 281, 187 S.E.2d 312; Dimmick v. Pullen, 120 Ga.App. 743, 172 S.E.2d 196; Crider v. State, 115 Ga.App. 347, 154 S.E.2d 743.

2. In this suit naming an employee and his master as defendants there was an allegation in the complaint as amended that the employee 'was an incompetent driver, that he had no valid license to drive in the State of Georgia, that the incompetence' was known to the employer. Admitting in the answer that the co-defendant servant was acting in the scope of his employment defendants then presented a written document described as a 'motion in limine' asking the court 'in advance of the trial to restrict and prohibit the plaintiff from bringing in any evidence that the defendant, Ronnie Davis, did not have a valid Georgia operator's license, since this fact would not and could not constitute the proximate cause.' This motion was not dealt with prior to trial but delayed until the plaintiff sought to introduce evidence that the employee was unsing a learner's license which he annually renewed due to his illiteracy preventing him from passing that portion of the driver's test which requires the ability to read and write. The trial judge was correct in holding that the absence of a proper driver's license by an employee is not admissible on the question of negligence. We have so ruled in Aycock v. Peaslee-Gaulbert &c. Co., 60 Ga.App. 897, 5 S.E.2d 598; Etheridge v. Guest, 63 Ga.App. 637, 12 S.E.2d 483; Windsor v. Chanticleer & Co., 89 Ga.App. 116, 78 S.E.2d 871; and Brown v. Sheffield, 121 Ga.App. 383, 173 S.E.2d 891. See also Western & A.R. v. Reed, 35 Ga.App. 538, 544, 134 S.E. 134 and Seaboard C.L.R. Co. v. Zeigler, 120 Ga.App. 276, 170 S.E.2d 60.

The rule is stated in Windsor v. Chanticleer & Co., supra, 89 Ga.App. p. 118, 78 S.E.2d p. 873: 'The failure of a driver of an automobile or motor truck to have a driver's license, where it does not appear that such failure had any causal connection with the injury inflicted, is not a ground of negligence authorizing a recovery against the driver or his master, and the mere employment of one to drive knowing that he does not have a driver's license, does not constitute actionable negligence.'

The cases cited by appellant involve negligent entrustment, a bailment situtation rather than a master-servant one. Therefore not applicable are Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga.App. 866, 65 S.E.2d 191; Medlock v. Barfield, 90 Ga.App. 759, 84 S.E.2d 113; and Roebuck v. Payne, 109 Ga.App. 525, 136 S.E.2d 399.

3. Appellant contends error occurred in the manner which the judge handled removal from the complaint of the allegation concerning the absence of a valid driver's license which was done through placing opaque material over such allegations and then photocopying the pleadings for sending out with the jury. He argues the effect was to leave blank sections in his pleadings without explanation. As the court had ruled the evidence to be inadmissible, it was proper to strike the allegations from the pleadings. Code Ann. § 81A-112(f); Herrington v. Spell, 48 Ga.App. 802, 173 S.E. 870. As was well said in the early case of Barnett & Co. v. Thompson, 37 Ga. 335: 'This Court will reluctantly interfere with the descretion of the court below in mere matters of practice, unless the legal rights of parties are prejudiced thereby.' More recently in Int'l Assoc. of Machinists v. Street, 215 Ga. 27(3), 108 S.E.2d 796, the Supreme Court similarly ruled 'If the legal rights of the parties are not prejudiced or denied, this court will not interfere with the discretion of the trial court in matters of practice in the hearing and disposition of causes before it unless this discretion has been exercised in an illegal, unjust, or arbitrary manner.' We do not regard the procedure followed here as being an abuse of the court's discretion in its control of the trial and there was no denial of the plaintiff's legal rights.

4. Such appellate restraint applies also to enumerations numbers 10 and 11 alleging error by the trial court during counsel's argument to the jury which is presented to be an infringement upon the right to a full discussion and an imposition of a time limit that constituted an unwarranted interference with the advocate's privilege of conducting his case in his own way. As was shown by the transcript, pages 237 and 239, the jury was retired at the court's request during argument by plaintiff's counsel and in its absence the judge inquired as to the basis for urging a figure of '$26,000 loss of wages.' In the colloquy counsel acknowledged absence of proof on this and that 'this is purely my speculation.' When the court said, 'I think you ought to clarify that with the jury' appellant's advocate gave his explanation concluding 'I think I have made that very clear to the jury that I was projecting from my own argument.' The court then said 'I ask you to make that clear again though.' Counsel agreed, following which the judge stated 'You have about seven minutes, six minutes, as a matter of fact,' and the jury was then brought back.

Citing McNabb v. Lockhart & Thomas, 18 Ga. 495(4); Owens v. State, 120 Ga. 209, 210(3), 47 S.E. 545; and Cawthon v. State, 71 Ga.App. 497, 498, 31 S.E.2d 64, which in fact support allowance of great latitude in argument and permissiveness of deductions and inference sustained by the evidence, appellant urges there nevertheless was an infringement upon his rights to a full discussion of the issues and damages involved as well as deprivation of his constitutional right granted under Code Ann. § 2-104 to prosecute his own cause.

We do not find error. Justice Jackson in Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 455, 96 L.Ed. 717; recognized that 'The nature of the (adversary) proceedings presupposes, or at least stimulates, zeal in the opposing lawyers. But their strife can pervert as well as aid the judicial process unless it is supervised and controlled by a neutral judge representing the overriding social interest in impartial justice and with power to curb both adversaries.' The trial court complied here with the imposed duty of Code § 81-1009 which provides 'Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same . . .' See too our holding in Mullis v. Chaika, 118 Ga.App. 118 162 S.E.2d 448 that the trial judge has the power and duty to contain argument within legitimate bounds.

'The trial judge is more than a mere chairman preserving order at a meeting or a mere moderator of a debate, but he is a minister of justice with a duty to govern the progress of a trial.' Heard v. Heard, 99 Ga.App. 864, 869, 110 S.E.2d 76, 80; Atlantic Coast Line Railroad Co. v. McDonald, 103 Ga.App. 328, 339, 119 S.E.2d 356, 364; Vaughn v. State, Ga.App., 190 S.E.2d 609, decided April 108 1972.

Moreover, it should be noted, counsel made no objection nor mistrial motion to the court's suggestion nor any complaint as to the time remaining. 'A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.' Joyner v. State, 208 Ga. 435(2), 67 S.E.2d 221; Cochran v. State, 213 Ga. 706(2), 100 S.E.2d 919.

As was pointed out in Loomis v. State, 203 Ga. 394, 404, 47 S.E.2d 58, 64 the constitutional right to handle one's case in one's own way 'is plainly subject to the inherent power of the court to prescribe the manner in which the business of the court shall be conducted, provided that this power cannot be 'exercised in such a way as to involve a deprivation of right. " In accord is Finley v. Thompson, 100 Ga.App. 508, 112 S.E.2d 166.

5. Enumerations of error 7 and 8 deal with the refusal of the trial court to admit in evidence a photocopy of a liability insurance company draft payable to the order of appellant and his wife and their attorney along with the letter from such insurer tendering the draft. Pertinent portions of this letter read: '. . . tendered on behalf of our insured, representing full settlement and satisfaction of the above case. We have carefully considered the facts of this case and have concluded that this amount represents a fair and equitable disposition thereof. The issuance of this draft is understood to be without solicitation on your part; however, acceptance for payment is conditional upon continuance (sic) of litigation with prejudice.' This occurred a month before institution of this suit....