Fett v. Alderman, 43525
| Decision Date | 23 April 1968 |
| Docket Number | No. 3,No. 43525,43525,3 |
| Citation | 161 S.E.2d 350,117 Ga.App. 677 |
| Parties | Fred FETT, Jr. v. Britt ALDERMAN, Jr., et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The verdict and judgment in favor of the defendants in the lower court was authorized, and the trial judge did not err in refusing to direct a verdict for the plaintiff and in overruling the motion for new trial.
This is an action in Fulton Superior Court by Fred Fett, Jr., against Britt Alderman and G. W. Morden to recover for injuries sustained when a power boat in which the plaintiff was a passenger, operated by H. F. Mullins, Jr., collided with the defendants' floating dock used for swimming purposes on Lake Lanier in Forsyth County. The collision allegedly occurred between 11 and 12 p.m on September 5, 1964. A jury trial resulted in a verdict and judgment for the defendants on June 14, 1967, from which the plaintiff appeals after the overruling of his motion for new trial. The case was here previously on another matter. See Morden v. Fett, 115 Ga.App. 92, 153 S.E.2d 629.
Israel Katz, A. Ed Lane, Atlanta, for appellant.
Long, Weinberg & Ansley, Sidney F. Wheeler, Troutman, Sams, Schroder & Lockerman, Robert L. Pennington, Atlanta, for appellees.
1. During the course of the trial counsel for the plaintiff elicited from the defendant Alderman the admission that he had no permit from the Corps of Engineers for the floating dock involved in the collision and that he was aware of a regulation concerning permits. Counsel then sought an answer to the question, 'And was that regulation complied with with respect to this particular swimming dock?' whereupon Alderman's counsel objected to the question as calling for a conclusion of law by the witness. The plaintiff's counsel stated that the witness had answered the question 'without equivocation at the time of the deposition,' and the trial court stated This ruling is asserted as error in the fourth enumeration, and corresponds to Special Ground 4 of the motion for new trial.
In the posture here presented we are not concerned with whether the deposition testimony itself is admissible as an admission against interest, even though counsel purports to show that the defendant answered such a question in the negative in a deposition which is not in evidence. Instead, the issue is confined to whether the plaintiff in the course of trial is entitled to elicit from a defendant an answer which in effect requires the witness to give an opinion as to an ultimate issue for decision by the jury on a mixed question of law and fact, that is, whether the defendant violated particular regulations of the Corps of Engineers, or stated otherwise, whether he was guilty of negligence per se in failing to obtain a permit for the floating dock which he had on Lake Lanier, if the regulations required such a permit.
We think under the circumstances here shown the trial judge properly sustained the objection to the question as calling for an inadmissible conclusion of law and that it is immaterial whether this conclusion was sought from an opposing party or some other witness. See Akin v. Randolph Motors, Incorporated, 95 Ga.App. 841, 846(3), 99 S.E.2d 358, involving the refusal to allow a police officer to testify which party had the right of way; Travelers Insurance Company v. Thornton, 119 Ga. 455(1, 2), 46 S.E. 678, involving the testimony of an expert as to a 'contributing cause' of an injury; and Cone v Davis, 66 Ga.App. 229, 234(5), 17 S.E.2d 849, 854, involving the testimony of a sheriff as to 'an excessive rate of speed' and 'driving in a reckless manner and not in regard to safety.'
2. The fifth, sixth, and seventh enumerations correspond to Special Grounds 5, 6, and 7 of the motion for new trial, and are directed to rulings of the trial court on the pleadings at the close of the evidence which eliminated, when considered with the instructions to the jury, substantial portions of the Corps of Engineers regulations as a basis for liability. These regulations, referred to in the preceding division of this opinion, and promulgated as § 311.4(a) and (b) of Title 36 of the Code of Federal Regulations in effect at the time of the collision, are as follows:
'(a) All boats or other vessels when not in actual use must be either removed from the reservoir, securely moored at authorized docks or boathouses where supervision by the owner or his representative is provided on a 24-hour-day basis, or placed in the care of a marina concessionaire, State or local managing agency or other party authorized to care for floating equipment on a 24-hour-day basis.
While counsel at the trial referred to evidence of a violation of these regulations, and the existence of proof is mentioned in the motion for new trial and the brief, the only evidence actually adduced on trial is to the effect that the defendants, even if aware of the regulations, had no permit for the swimming dock, that it was floating on Lake Lanier, and, under varying versions of the situation as related by various witnesses, it was either anchored to the bottom by a rope attached to two concrete blocks in water of less than a depth of 12 feet no more than about 40 feet from the shore, or drifting at a considerably greater distance from the shore. There is no dispute as to the fact that it consisted of a wooden platform on a metal frame, approximately 10 feet square, suspended over empty 55 gallon oil drums, and that it was unlighted and not equipped with any reflectors or warning devices.
Following his previous rulings on the pleadings, the trial court in his instructions to the jury with respect to the regulations in effect limited the jury to a finding of negligence per se in that the 'swimming raft or floating facility was not constructed in accordance with plans and a permit approved by the district engineer or his designated representative,' that
The quoted regulations are by no means self-explanatory in respect to applicability to the swimming dock or the necessity of a permit for such a facility, or if the facility here involved required a permit, what type of construction would meet with approval, or where such a facility could be placed, or whether any lighting or warning device would be required. In such a situation the regulations themselves provide no meaningful guide standing alone, except in the sense that 'boats or other vessels' not in use have to be removed or moored in certain places, and 'boats, barges and other vessels or floating facilities' have to be moored in certain designated places, as to which the evidence in the present case is silent, and that 'floating or stationary mooring facilities' have to be constructed 'in accordance with plans and a permit approved by the District Engineer or his approved representative.' Except as heretofore shown the plaintiff offered no proof, even if available, to show any violation of the regulations except in the limited sense presented to the jury by the trial court's instructions. Moreover, aside from the regulations here under consideration, the issue of whether the defendants were negligent in creating a hazard to navigation was presented to the jury under adequate instructions, and the jury had before it, on the issue of negligence, but not negligence per se in violation of any specific regulations, substantially the same issues as the plaintiff apparently sought to raise as being in violation of the regulations.
Considering the rulings of the trial court on the pleadings together with instructions as given based on the evidence actually adduced (and counsel for the plaintiff fails to show wherein the trial court erroneously deprived him of any...
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...1972). Our courts have embraced this rule in numerous decisions holding that testimony of this sort must be excluded. Fett v. Alderman, 117 Ga.App. 677, 161 S.E.2d 350; Douglas v. McNabb Realty Co., 78 Ga.App. 845, 854, 52 S.E.2d 550; Davies v. Blasingame, 177 Ga. 450(4), 170 S.E. 477; Hunt......