Cambron v. Cogburn, 43565

• Decision Date: 05 September 1968
• Docket Number: No. 43565,No. 3,43565,3
• Citation: 164 S.E.2d 350,118 Ga.App. 454
• Parties: Frances CAMBRON v. J. M. COGBURN, Jr., et al
• Court: Georgia Court of Appeals

Page 350

164 S.E.2d 350

118 Ga.App. 454

Frances CAMBRON v. J. M. COGBURN, Jr., et al.

No. 43565.

Court of Appeals of Georgia, Division No. 3.

Sept. 5, 1968.

Rehearing Denied Oct. 8, 1968.

Duncan & Gary, Vernon W. Duncan, Marietta, Ray Gary, Mableton, for appellant.

Reed & Tate, R. M. Reed, Marietta, for appellees.

Syllabus Opinion by the Court

PANNELL, Judge.

Mrs. Frances Cambron brought an action in the Superior Court of Cobb County against John Maxwell Cogburn, Sr., John Maxwell Cogburn, Jr., M. F. Jones and Hollis Ed Cockrell, seeking recovery of damages for injuries sustained in a rear-end automobile collision where the plaintiff's car was struck from the rear by the Cogburn automobile and immediately thereafter the rear end of the Cogburn automobile was struck by Cockrell, knocking the same forward into the rear of plaintiff's vehicle. M. F. Jones was stricken as a party defendant. Separate specifications of negligence were alleged as against the Cogburns and Cockrell. The defendants answered denying the allegation of negligence as against the answerer but admitting the allegations of negligence alleged as to the other defendant. The jury returned a verdict in favor of the plaintiff and against the defendant Cockrell. The jury found in favor of the defendants Cogburn. Plaintiff appeals. Held:

1. The certificate, by the keeper of the records of the municipality to the ordinance sought to be introduced in evidence by the plaintiff, which stated that the purported copy 'is a true and correct copy of paragraphs (a) and (d) of Sec. 30.45., Following too closely, taken from the Traffic Code, City of Atlanta, Georgia, 1957; Adopted by the Board of Aldermen August 5, 1957 and Approved August 7, 1957; as the same appears from the original which is of record and on file in my said office,' is sufficient to meet the requirements of Code § 38-606 as it shows it is a correct copy of an original adopted by the legislative body of the municipality. See Perry v. State, 78 Ga.App. 273(3), 50 S.E.2d 709. The cited case is not authority for a ruling that the certified copy is not admissible unless the keeper of the records also certifies the ordinance is then in full force and effect. The trial court erred in refusing to admit the certified copy of the ordinance into evidence upon the objection that it was not properly authenticated.

2. (a) While it has been held that when a municipal ordinance is identical with the state law and there is no statute authorizing such an ordinance, the ordinance is invalid because the subject matter thereof has been pre-empted by the state law (Lanford v. Alfriend, 147 Ga. 799(1), 95 S.E. 688; Mayo v. Williams, 146 Ga. 650, 652, 92 S.E. 59; Strauss v. Mayor of Waycross, 97 Ga. 475, 25 S.E. 329; Moran v. City of Atlanta, 102 Ga. 840, 30 S.E. 298; Reid v. Perkerson, 207 Ga. 27(5), 60 S.E.2d 151), or is invalid as in violation of the constitutional provision (Art. I, Sec. IV, Par. I; Code Ann. § 2-401) that no special law shall be passed where provision has already been made by a general law (Giles v. Gibson, 208 Ga. 850, 69 S.E.2d 774; Jenkins v. Jones, 209 Ga. 758, 75 S.E.2d 815; Beard v. City of Atlanta, 91 Ga.App. 584, 86 S.E.2d 672); yet where there is a statute expressly authorizing such an ordinance (see Ga.L.1955; Code Ann. § 68-1680; Moran v. City of Atlanta, 102 Ga. 840, 30 S.E. 298; Littlejohn v. Stells, 123 Ga. 427, 429, 51 S.E. 309; Hood v. Von Glahn, 88 Ga. 405, 14 S.E. 564), and there is no proper attack in the lower court upon the constitutionality of the ordinance because, in making the attack, sufficient references to the provisions of the Constitution or to the statute providing for the same offense were not given, and there is no constitutional attack on the statute permitting such ordinance, this court must hold that a properly certified copy of such ordinance is admissible in evidence on the trial of an automobile negligence case in which it is alleged, and proof is tendered, that the defendants violated such an ordinance.

2. (b) Upon like reasons it was error to refuse to admit in evidence a certified copy of a recorder's court docket entry showing a plea of guilty by the defendant on objection that the ordinance, to the violation of which the plea referred, was invalid; nor was this properly certified docket entry objectionable on the ground that the original signed plea of guilty would be the highest and best evidence of such plea, when it is not disclosed that such a signed plea exists, or that a plea in writing is required by statute in that particular recorder's court.

2. (c) The trial court also erred in refusing to permit one of the defendants to testify that he pleaded guilty to the violation of the ordinance in the recorder's court. Roper v. Scott, 77 Ga.App. 120, 48 S.E.2d 118.

3. Doctors' bills and medical bills, and checks in payment were sufficiently identified and supported by oral testimony to be admissible in evidence. Their rejection by the trial court was error. Johnson v. Rooks, 116 Ga.App. 394, 397(2), 157 S.E.2d 527, distinguishing Taylor v. Associated Cab Co., 110 Ga.App. 616, 139...