Cullen v. Timm

• Decision Date: 08 September 1987
• Docket Number: No. 74737,74737
• Citation: 184 Ga.App. 80,360 S.E.2d 745
• Parties: CULLEN et al. v. TIMM.
• Court: Georgia Court of Appeals

Page 745

360 S.E.2d 745

184 Ga.App. 80

CULLEN et al. v. TIMM.

No. 74737.

Court of Appeals of Georgia.

Sept. 8, 1987.

Thomas R. Taggart, Laura A. Marcantonio, Savannah, for appellants.

Richard B. Eason, Jr., Carolyn J. Kennedy, Atlanta, for appellee.

DEEN, Presiding Judge.

Appellants Cullen and Boylan were roommates of appellee Timm at Hunter Field, near Savannah, Georgia. On the evening on which the automobile collision occurred which gave rise to the action below, appellee was in his room watching television and writing a letter when Cullen and Boylan came in and suggested that he accompany them to a concert in Savannah. Appellee (somewhat reluctantly, according to his testimony) agreed to attend the concert, and the three proceeded downtown in Timm's automobile, with Timm at the wheel. During the evening, prior to starting out for the concert, each of the three had consumed "a beer or two."

In the course of the trip to town Timm stopped at between 15 and 20 stop signs and red traffic lights; on at least two occasions, however, according to testimony, the appellants had urged Timm not to wait until the light changed to green, but to go on through the intersection after pausing. On both these occasions Timm, seeing no traffic or "cops" in the vicinity, had acceded to Cullen's and Boylan's urging and had proceeded through the red light. On the second occasion, however, Timm's car collided with an oncoming vehicle. Cullen, who according to undisputed testimony was not wearing his seat belt, was thrown from the car; Boylan, who did have his seat belt on, remained in the vehicle, but both sustained fractures, contusions, and other injuries, Cullen being the more seriously injured of the two.

At trial there was undisputed testimony that after the accident appellant Cullen, on some five or six occasions, voluntarily rode as a passenger in Timm's car with Timm driving, and that Boylan rode with Timm at least twice. The trial court charged the jury on, inter alia, comparative negligence, assumption of the risk, and joint venture. The jury awarded each plaintiff/appellant $10,000 in general damages, and made additional awards to Cullen; i.e., $25,000 for future medical expenses and $15,000 for future lost earnings.

Plaintiffs moved for a new trial on the general grounds; on the ground of erroneous jury instruction on comparative negligence, duty of ordinary care, assumption of risk, and joint venture; and on the additional ground that the giving of identical $10,000 awards in general damages to both plaintiffs was so grossly disproportionate to the greater magnitude of Cullen's injuries as to suggest bias, prejudice, gross mistake, or improper motive on the part of the jury. After denial of the motion, Cullen and Boylan now appeal, enumerating as error (1) the trial court's overruling of the motion for new trial, with the concomitant inference of gross mistake or improper motive on the jury's part; and (2), (3), (4), the allegedly improper instruction to the jury on comparative negligence, assumption of risk, and joint venture. Held:

1. It is well settled that such matters as negligence, ordinary care, comparative negligence, and assumption of risk are to be resolved by the jury. McKinney & Co. v. Lawson, 180 Ga.App. 550, 551, 349 S.E.2d 763 (1986); Eyster v. Borg-Warner, 131 Ga.App. 702, 206 S.E.2d 668 (1974). It is also the jury which assesses the credibility of witnesses and the weight to be assigned to the evidence. Young v. State, 232 Ga. 176, 205 S.E.2d 307 (1974); Armour v. State, 154 Ga.App. 740, 270 S.E.2d 22 (1980); Causey v. State, 154 Ga.App. 76, 267 S.E.2d 475 (1980).

In the instant case the record clearly indicates that the jury, after considering the evidence, found negligence on the part of defendant/appellee Timm, in that it assessed against him a total of $60,000 in damages, $50,000 payable to appellant Cullen and $10,000 to appellant Boylan. The record also clearly indicates that the evidence authorized charges on comparative negligence and assumption of risk. The record is less clear, however, as to whether the evidence regarding joint venture was legally sufficient to authorize that jury charge. There was Timm's testimony that the plaintiff/appellants were the instigators of the ill-fated ride; plaintiff/appellants testified that neither had his own means of transportation and routinely rode with Timm whenever going off the base, without reimbursing him in any manner for the transportation. There was also testimony that both voluntarily rode with Timm several times after the collision; that each of the plaintiff/appellants, during the ride on the crucial night, urged Timm to disregard at least one traffic signal, including the one at the intersection where the collision occurred; and that appellant Cullen was not wearing a safety belt. "It is the duty of the court to charge the jury on the law 'as to every controlling, material, substantial and vital issue in the case.' " Berger v. Plantation Pipeline Co., 121 Ga.App. 362, 364, 173 S.E.2d 741 (1970); cited in Fowler v. Gorrell, 148 Ga.App. 573, 251 S.E.2d 819 (1978).

A careful review of the facts, however, shows that the "joy ride" of these three Army roommates to a local musical concert was in the eyes of the law a mutually agreed "joint trip to a concert." Though appellee Timm indicated he had some reservations about leaving the barracks that night and some "cajoling" occurred, it is clear that the decision to drive the jeep with the two passengers was, in final import, the sole decision of Timm. Moreover, though there was a dispute in the evidence whether Timm, of his own volition and in disregard of the caution of his passengers, "ran" several red lights or ran one or two red lights only at the urging of his passengers, there is no dispute, and Timm candidly conceded, that the ultimate decision to run the red light rested solely in him. On two occasions Timm said he was not proud of the fact he had succumbed to "peer pressure," or poor advice. Such testimony can only mean Timm recognized that it was he and he alone who held ultimate operational authority over the vehicle. To make his understanding crystal clear, Timm stated that he was the driver...