Continental Ins. Co. v. Mercer, s. 48115-48117

• Decision Date: 31 October 1973
• Docket Number: No. 1,Nos. 48115-48117,s. 48115-48117,1
• Parties: CONTINENTAL INSURANCE COMPANY v. Edortha G. MERCER et al. WOOTTEN TRANSFER COMPANY v. Edortha G. MERCER et al. Jesse C. BRASWELL et al. v. Edortha G. MERCER et al
• Court: Georgia Court of Appeals

Page 297

203 S.E.2d 297

130 Ga.App. 339

CONTINENTAL INSURANCE COMPANY v. Edortha G. MERCER et al.

WOOTTEN TRANSFER COMPANY v. Edortha G. MERCER et al.

Jesse C. BRASWELL et al. v. Edortha G. MERCER et al.

Nos. 48115-48117.

Court of Appeals of Georgia, Division No. 1.

Oct. 31, 1973.

Rehearing Denied Nov. 29, 1973.

Harris, Russell & Watkins, Philip R. Taylor, Macon, for Continental Insurance and Wootten Transfer Co.

Sharpe, Hartley & Newton, W. Ward Newton, Lyons, for Jesse C. Braswell and others.

Smith & Harrington, Will Ed Smith, Eastman, for Edortha G. Mercer and others.

Syllabus Opinion by the Court

QUILLIAN, Judge.

Edortha G. Mercer and Lewis Mercer filed their complaint in the Wheeler Superior Court against Jesse C. Braswell, Oris Braswell, Ruby Braswell, Wooten Transfer Company, Inc. (hereinafter referred to as Wooten), and The Continental Insurance Company (hereinafter referred to as Continental) for the wrongful death of their daughter, Connie Mercer, and for expenses incurred in connection therewith. This action arose from a collision between an automobile in which the plaintiffs' daughter was riding and which was being driven by Jesse Braswell and a truck driven by one Police Norton and owned by Wooten. Under Code Ann. § 68-612 (Ga.L.1937, pp. 730, 731), Continental provided liability insurance.

The defendants filed answers to the complaint. Thereafter, Continental filed its separate motion to be stricken as a party defendant. Wooten and Continental filed their joint motion for summary judgment on the ground that there were no genuine issues as to any material fact and thus they were entitled to a judgment in their favor. This was based on the proposition that there was no negligence on the part of Wootten's driver. The defendants, Ruby and Oris Braswell, filed their motion for summary judgment by which it was principally contended that they were not liable under the 'family purpose car doctrine.' The defendant, Jesse Braswell, made a motion in effect taking the same view that was taken by Continental and by Wootten. The defendants also moved to strike certain items of expenses claimed by the plaintiff, Lewis Mercer, on account of the death of his daughter, Connie Mercer. The trial judge entered an order overruling the defendants' motion to strike the items of expenses claimed; he also overruled the motion for summary judgment brought by the defendants, Wootten and Continental, and overruled the motion as to the defendant, Ruby Braswell. However, the defendant Oris Braswell's motion for summary judgment was granted and he was discharged as a party defendant. Upon a certificate for immediate review, appeals were taken to this court.

Case 48115 involves Continental's appeal to this court. Case 48116 involves the appeal of Wootten to this court. Case 48117 involves the appeal of Jesse Braswell and Ruby Braswell, Jesse Braswell's appeal being predicated on the overruling of the motion to strike Continental as a party defendant, and the motion to strike certain items of expenses, while Ruby Braswell's appeal is from the overruling of her motion for summary judgment. Held:

1. It is urged that the plaintiff could not join the insurance company along with the motor carrier which it insured and third-party tortfeasors. In Russell v. Burroughs, 183 Ga. 361, 188 S.E. 451, by a divided decision the Supreme Court held the Motor Carrier Act of 1931 (Code § 68-612), then in effect, construed in conjunction with Code § 3-113 and the cases interpreting it did not permit a suit against a tortfeasor and his insurance carrier. Georgia Laws 1937, p. 730, amended Code § 68-612, to permit a suit against a motor carrier and the insurance carrier in the same action whether arising in tort or contract. This court in a thorough review of prior decisions held that under the provisions of such law there was a right of action against the insurance carrier, the motor carrier, and the driver of the motor carrier in the same action. Tarrant v. Davis, 62 Ga.App. 880, 883, 10 S.E.2d 636. However, because of Code § 3-113, preventing the joinder of claims ex contractu and claims ex delicto, our courts would not allow an action to be maintained against an insurance company and a third person in no way connected with such insurance company. Reeves v. McHan, 78 Ga.App. 305, 50 S.E.2d 787; Dishinger v. Suburban Coach Co., 84 Ga.App. 498(5), 66 S.E.2d 242.

Code § 3-113 has been repealed by the Civil Practice Act (Code Ann. § 81A-201(a); Ga.L.1966, pp. 609, 687; 1967, pp. 226, 242, 243, 246, 247, 249). The Civil Practice Act provides for the liberal joinder of claims and parties for the beneficent purpose of avoiding multiplicity of suits, conflicting decisions, and to see that justice and equity obtains in all situations. Code Ann. § 81A-118(a) (Ga.L.1966, pp. 609, 630; 1968, pp. 1104, 1108), provides: 'A party asserting a claim to relief as an original claim . . . may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.' While Code Ann. § 81A-120(a) (Ga.L.1966, pp. 609, 631), further provides: 'All persons may be joined in one actions 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 of the relief demanded.'

It is plain to see from a reading of these sections and a study of the federal cases interpreting them, as well as our own recent authority, that there is now no inhibition to the joinder of actions ex contractu and those ex delicto. North Carolina Nat. Bank v. Peoples Bank of LaGrange, 127 Ga.App. 372(2), 193 S.E.2d 571. See also Cohen v. Garland, 119 Ga.App. 333(3), 167 S.E.2d 599. Thus, the insurance carrier, the motor carrier, and third-party tortfeasors may be proceeded against in one action.

It is argued that Code Ann. § 68-612 is a special statutory proceeding which is excluded from the purview of the Civil Practice Act. Section 81 of the Civil Practice Act (Code Ann. § 81A-181; Ga.L.1966, pp. 609, 668; 1967, pp. 226, 241; 1968, pp. 1104, 1109) clearly and specifically provides: 'This Title shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law, but, in any event, the provisions of this Title governing the sufficiency of pleadings; defenses; amendments; counterclaims; cross-claims; third-party practice; joinder of parties and causes . . . shall apply to all such proceedings.' (Emphasis supplied.)

The trial judge properly refused to dismiss the defendant Continental.

2. Argument is made that the cost of a monument incurred as part of the burial expenses should have been stricken from the plaintiff's claim.

It is well settled that a parent can recover expenses reasonably incurred in the burial of his child who has been wrongfully killed. Daughtry v. Stubbs, 119 Ga.App. 429(2), 167 S.E.2d 409; Kehely v. Kehely, 200 Ga. 41(3), 36 S.E.2d 155. See also Saunds v. Forsythe, 112 Ga.App. 269(1), 144 S.E.2d 926; Southern Railway Co. v. Covenia, 100 Ga. 46(2), 29 S.E. 219. There is foreign authority for support of the proposition that a tombstone comes within the term 'reasonable funeral expenses.' Smith v. Farrington, 117 Tex. 459, 6 S.W.2d 736.

It is contended that the price of a tombstone or a monument is difficult to prove, and the question of its reasonableness is difficult to resolve and establish and thus subject to misuse. This is no basis to disallow recovery of an item which is clearly within the realm of funeral expenses. We therefore hold that...