Chadwick v. Miller, 66461

• Decision Date: 05 December 1983
• Docket Number: No. 66461,66461
• Citation: 169 Ga.App. 338,312 S.E.2d 835
• Parties: CHADWICK et al. v. MILLER et al.
• Court: Georgia Court of Appeals

Page 835

312 S.E.2d 835

169 Ga.App. 338

CHADWICK et al. v. MILLER et al.

No. 66461.

Court of Appeals of Georgia.

Dec. 5, 1983.

Rehearing Denied Dec. 19, 1983.

Certiorari Denied Jan. 26, 1984.

M. David Merritt, Howard M. Lessinger, Atlanta, for appellants.

Wilbur C. Brooks, I.J. Parkerson, Arthur Myers, Jr., Atlanta, for appellees.

CARLEY, Judge.

Appellant-plaintiffs are the children of Mrs. Linda Chadwick. Mrs. Chadwick had been a passenger in an automobile operated by her sister, Ms. Frix. As Ms. Frix was making a left turn across the path of oncoming highway traffic, her automobile was hit broadside by a vehicle which was owned by appellee-defendant ACCO Industries, Inc. (ACCO) and which was operated by appellee-defendant Miller, an ACCO employee. Mrs. Chadwick died as the result of the injuries she sustained in the collision.

Appellants, by next friend, instituted the instant wrongful death action against three defendants: Ms. Frix and appellees Miller and ACCO. The case was tried before a jury and a verdict for all three defendants was returned. Judgment was entered on the verdict and appellants filed a timely motion for new trial as to all three defendants. The trial court subsequently granted appellants' motion for new trial as to defendant Frix. This ruling was based upon an erroneous charge on the principle of imputed negligence. The motion for new trial was denied, however, as to appellees Miller and ACCO. The court's order partially denying appellants' motion for new trial did not originally direct the entry of a final judgment for appellees pursuant to OCGA § 9-11-54(b) (Code Ann. § 81A-154).

Under the above discussed procedural posture, we determined in Chadwick v. Miller, 165 Ga.App. 20, 299 S.E.2d 93 (1983), that appellants' appeal from the denial of their motion for new trial as to appellees had to be dismissed as premature. This result was required because appellants' action was still pending as against Ms. Frix, and the order appealed from, which denied a new trial as to appellees, did not comport with the requirements of OCGA § 9-11-54(b) (Code Ann. § 81A-154) so as to "supply the necessary prerequisite of 'finality' to the appealability of the judgment entered in [appellees'] favor..." Chadwick v. Miller, supra at 21, 299 S.E.2d 93. Subsequent to the dismissal of that former appeal, the trial court, acting pursuant to OCGA § 9-11-54(b) (Code Ann. § 81A-154), supplied the "finality" to the judgment in favor of appellees which previously had been lacking. The instant appeal is from that now-final judgment in favor of appellees.

1. Appellants first enumerate as error the giving of a charge on legal accident. It is urged that a charge on that principle was unauthorized under the evidence.

It has long been recognized that the defense of legal accident is a source of potential confusion to a jury. "[T]o charge a jury of laymen that, if the collision was the result of an accident, the plaintiff cannot recover is frequently taken to mean that if the act was not intentional the plaintiff cannot recover, unless the meaning of the word 'accident' is clearly explained in the same context ..." Bush v. Skelton, 91 Ga.App. 83, 85, 84 S.E.2d 835 (1954). It does not appear, however, that the appellate courts themselves have the best of records with regard to "clearly" explaining the defense of accident.

For example, it has been held that " '[a]ccident' in its strict sense implies the absence of negligence for which no one would be liable. [Cit.]" (Emphasis supplied.) Gilbert v. Parks, 140 Ga.App. 550, 551(4), 231 S.E.2d 391 (1976). "An 'accident,' in law, refers to an event not proximately caused by negligence but which instead arises from an unforeseen or unexplained cause." (Emphasis supplied.) Stone's Independent Oil Dist. v. Bailey, 122 Ga.App. 294, 303, 176 S.E.2d 613 (1970). Morrow v. Southeastern Stages, 68 Ga.App. 142, 22 S.E.2d 336 (1942) is a case in which this strict definition of accident was applied for purposes of determining whether a charge on that defense was authorized under the evidence. In Morrow, a suit had been brought against the employer of the driver of a bus which had collided with a vehicle in which the plaintiff was a guest-passenger. The defendant bus company defended on the ground that the collision was proximately caused by the negligence of the plaintiff's host driver who was not a party to the suit. This court, applying the strict definition of accident, held that the defendant bus company's evidence that the collision was caused by the negligence of the non-party host-driver did not authorize a charge on accident. "It is clear from the evidence that the plaintiff's injuries were caused either by the negligence of the driver of the automobile or that of the driver of the bus ... The jury returned a verdict for the defendants in the present case. It may be that the jury reached the conclusion that the defendant bus company's driver was entirely without fault, and that the negligence of the driver of the automobile was the proximate cause of the plaintiff's injuries, but, under the charge which is complained of, it can not be said that its attention was not distracted from the real issues of negligence by a consideration of a theory wholly unauthorized by the evidence." Morrow v. Southeastern Stages, supra at 146-147, 22 S.E.2d 336. Thus, Morrow stands for the proposition that, under a strict definition, the defense of accident is not raised by evidence which would authorize a finding that the injurious event was the proximate result of the negligence of someone other than the defendant in the suit. See also Toles v. Hair, 83 Ga.App. 144(2), 63 S.E.2d 3 (1951).

In direct contrast to Morrow and Toles, there are cases which, although recognizing the strict definition of accident, hold that accident "is also 'often used to indicate a happening which, although not wholly free from negligence by some person, was not proximately caused by a failure of either of the parties to a case to exercise ordinary care in the situation.' [Cits.]" Baggett v. Jackson, 79 Ga.App. 460, 463, 54 S.E.2d 146 (1949). "The theory of 'accident' only applies when the injury does not result from the negligence of either party, and is a mere casualty not due to the negligence of anyone, [cit.], but may be due to the negligence of a third person not a party to the suit. [Cit.]" (Emphasis in original.) Palmore v. Stapleton, 157 Ga.App. 691, 692, 278 S.E.2d 476 (1981). It is readily apparent that this definition of accident is broader than the strict definition employed in Morrow and Toles to the extent that it would allow an injurious event which was proximately caused by the negligence of someone other than a party to the suit to be considered an accident, at least as between the plaintiff and defendant in the suit. Boatright v. Sosebee, 108 Ga.App. 19, 132 S.E.2d 155 (1963), is apparently the first decision in which this broad definition was applied so as to authorize a charge on accident based upon evidence purporting to show a causal connection between the actions of an individual not a party to the suit and the injurious event. "In Boatright, the plaintiff's lead vehicle stopped to avoid colliding with an unidentified vehicle which pulled in front of her. The rear vehicle then collided with plaintiff's vehicle. There [an] objection to the 'accident' charge was made and the court answered that an (accident) is 'a happening which, although not wholly free from negligence by some person, was not proximately caused by a failure of either of the parties to a case to exercise ordinary care in the situation.' [Cits.]" Lynch v. Broom, 158 Ga.App. 52, 53, 279 S.E.2d 302 (1981).

In holding that this evidence authorized a charge under the broad definition of accident, Boatright equated that defense with the legal principle of sudden emergency. The equation of accident with sudden emergency appears not only from the clear import of the language employed in the discussion in Boatright, supra at 21, 132 S.E.2d 155, but also from the fact that Whitfield v. Wheeler, 76 Ga.App. 857, 47 S.E.2d 658 (1948), one of the cases cited in Boatright as authority for the proposition that the actions of a non-party will authorize an accident charge, is actually a decision involving sudden emergency. Notwithstanding the fact that Boatright automatically assumed without discussion that the defense of accident and the seemingly separate and distinct principle of sudden emergency were equivalent, it has since been followed without question as authority for giving an accident charge in cases in which the asserted negligent actions of a non-party are urged defensively as the sole proximate cause of the injurious occurrence at issue. The result of this adherence to Boatright has been the approval of charges on accident in cases where no such charge would be authorized if the strict definition of Morrow and Toles were applied. In other words, contrary to Morrow and Toles, the giving of a charge on accident as broadly defined has been approved in cases wherein the plaintiff's injuries were clearly the proximate result of the negligence of someone. See Palmore v. Stapleton, supra; Lynch v. Broom, supra; Elder v. MARTA, 160 Ga.App. 78, 286 S.E.2d 315 (1981). Of such cases, Garrett v. Brannen, 164 Ga.App. 10, 296 S.E.2d 205 (1982), is in direct conflict with Morrow and Toles, because there it was acknowledged that the collision was the result of the negligence of either the plaintiff's host-driver, who was not a party to the suit, or of the defendant driver of the other vehicle, or of both. However, this court approved an accident charge, based upon evidence purportedly authorizing a finding that the negligence of the non-party host-driver was the proximate cause of the collision and that, as between the defendant and the non-negligent plaintiff, the occurrence was accordingly an accident. Under exactly this same...