Griffin v. Ross, s. 35879
| Decision Date | 15 February 1956 |
| Docket Number | Nos. 35879,35885,No. 1,s. 35879,1 |
| Citation | 91 S.E.2d 815,93 Ga.App. 407 |
| Parties | Mrs. Holly M. GRIFFIN v. George A. ROSS. M. C. YANCEY v. Mrs. Holly M. GRIFFIN |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Under rules pronounced in Western Union Telegraph Co. v. Griffith, 111 Ga. 551, 36 S.E. 859, the bill of exceptions in case 35879 must be dismissed and the motion to dismiss the bill of exceptions in case number 35885 be denied.
2. The verdict was supported by the evidence though predicated in part upon a witness' testimony which was contradictory and equivocal. The question as to what weight and credit would be given the witness' testimony was for the jury.
3. Where a master and servant are named as co-defendants recovery may be had against the master alone when his individual acts of negligence constituted the sole proximate cause of the damage done.
4. , Pippin v. State, 205 Ga. 316, 317(9), 53 S.E.2d 482.
5. When a party's contentions are contrary to the record the record must prevail.
Mrs. Holly M. Griffin filed a petition against M. C. Yancey and George Anders Ross in the Superior Court of Putman County. Thereafter, this petition was amended three times. As amended, the petition sought to recover $41,889.60 as damages for the death of the plaintiff's husband, Willie B. Griffin, and in substance alleged: On May 7, 1953 at a point on the State-aid highway between Eatonton and Sparta known as State Route 16, a truck loaded with logs and owned by Yancey was parked by Ross, an employee of Yancey, who was then acting within the scope of his employment and in the prosecution of Yancey's business. On the same day Ross orally notified Yancey that he had parked the truck. At the place where the truck was parked, the highway runs east and west and is more than 36 feet wide. The highway is paved, the paved portion being about 21 feet in width with two lanes of travel of equal width, the south lane being the right lane for vehicles traveling toward Sparta and the north lane being the right lane for vehicles traveling toward Eatonton. On each side of the pavement there are unpaved shoulders more than 8 feet wide, the one on the south side being approximately level for more than 91 inches from the soughern edge of the pavement affording sufficient space on which to park the truck. Ross parked the truck south of the center line of the highway, headed toward Sparta, with the left rear wheel 4 feet 3 inches from the center line. The truck was not parked as near the right side of the highway as was practical. The truck was left in this position until after the collision herein mentioned, without lights or reflectors of any kind on the rear of the truck, Willie B. Griffin did not see the truck. In the collision, Willie B. Griffin, received injuries from which he died on May 11, 1953. At the time of his death, the plaintiff was the wife of Willie B. Griffin. Willie B. Griffin was then 30 years of age, had a life expectancy of 34.4 years and was earning $300 per month by his labor. The death of Willie B. Griffin was directly and proximately caused by the negligence of the defendants parking the truck within less than eight feet of the center of the highway, failing to have the truck equipped with lights or reflectors on the rear, blocking the south lane of travel for more than twenty-four hours immediately before the collision, failing to give any warning that the truck was parked in the highway, failing to park the truck as far to the right on the heghway as practical, and failing to light lights on the rear of the truck on the night of May 9, 1953.
The defendants filed separate answers, both of which were amended one time. Both answers denied all allegations of the petition, except that the answer of Yancey admitted ownership of the truck. Both answers asserted that the death and injury of Willie B. Griffin was the result of his own negligence in that he was intoxicated, was driving at a speed of 60 miles per hour or more, was not driving at a safe speed for the condition of the road, did not have his car under proper control, did not keep a proper lookout and did not have proper lights on his car.
The evidence was in sharp conflict as to practically every feature of the case. The plaintiff's proof showed facts from which it could be legitimately concluded that the relationship between her and the deceased was that of husband and wife; his earning capacity and expectancy was a given amount and a certain span of years; he came to his death after dark on the evening of the date alleged in the petition when the automobile struck an unlighted truck bearing no reflectors which had by the defendant Ross been negligently and illegally parked upon the highway; Ross was the servant of the defendant Yancey, acting within the scope and course of his employment when the truck was parked in the state and manner referred to; Ross pleaded guilty to the offense of illegally parking the truck and admitted in the ordinary's court that it was illegally parked; on the evening of the day when the truck was parked on the highway Ross notified his employer Mr. Yancey that the truck had been left on the highway and had no lights upon it; the truck was from that time until the succeeding day allowed to remain on the highway in the same condition. There was also proof that Griffin was sober when the collision occurred.
The defendant's evidence was sufficient if believed by the jury to disprove every material fact alleged in the petition or shown by the plaintiff's proof, except that the deceased and the plaintiff were married, and that the truck was unlighted, obstructed the highway, was collided with by the deceased's automobile, the collision was fatal to Griffin and that he was of the age and had the earning capacity alleged in the petition. The defendant's evidence in conflict with the plaintiff's evidence, was that Griffin was intoxicated and driving when the collision occurred, the truck was equipped with reflectors, was not negligently or illegally parked by Ross, that Ross had no authority to use the truck, was not acting in the capacity of his co-defendant's servant when it was left upon the highway, Mr. Yancey neither knew or authorized the use of the truck, and did not know it was upon the highway until the day succeeding the collision and had not been given notice by Ross or any other person of the truck being left upon the highway.
The defendant, Yancey filed a motion in arrest of judgment on the ground stated in various forms: 'That to find the defendant M. C. Yancey guilty of negligence in said case and to render a verdict against him and for a judgment to issue against him based on said verdict and for said jury to find in favor of George Anders Ross, and to find that the said George Anders Ross was not guilty of negligence was contrary to plaintiff's pleadings in said case and said verdict and judgment against M. C. Yancey was void and contrary to law.'
The plaintiff filed a motion for new trial as did the defendant Yancey, and upon the respective motions for new trial the movants excepted and brought the case here by separate bills of exceptions. In the bill of exceptions filed by Mrs. Holly M. Griffin the defendant Ross alone was named defendant in error. The case is number 35879 in this court. In the bill of exceptions by M. C. Yancey, he was plaintiff and Mrs. Holly M. Griffin sole defendant in error. The case is number 35885 in this court.
G. L. Dickens, Jr., Sparta, Peter J. Rice, Eatonton, for Mrs. Holly M. Griffin.
R. C. Whitman, Jr., Whitman & Whitman, Eatonton, for George A. Ross and M. C. Yancey.
1. In this court George A. Ross, defendant in error in case No. 35879 moves to dismiss the bill of exceptions filed by Mrs. Holly M. Griffin to review the judgment of the trial court overruling her motion for a new trial on the ground that his co-defendant, M. C. Yancey a necessary party to the appeal is not named defendant in error in the bill of exceptions.
Likewise the defendant in error Mrs. Holly M. Griffin in case number 35885 moves to dismiss the bill of exceptions filed by M. C. Yancey to review the judgment overruling his motion for new trial on the ground that his co-defendant Ross who she contends was an indispensable party to the appeal is not named defendant in error in the bill of exceptions.
The case of Western Union Telegraph Co. v. Griffith, 111 Ga. 551, 36 S.E. 859, is controlling authority as to both motions. The Griffith case holds that where, in a case against co-defendants alleged to be joint and several tort-feasors, the verdict is in favor of the plaintiff as to one of the defendants but absolves the other from liability, the plaintiff may have the election of being content with the verdict, or of moving for a new trial. If the latter is chosen and a new trial granted the entire verdict would be set aside, hence both defendants are interested in an appeal from a judgment overruling the motion and must be named defendants in error in the bill of exceptions. It follows that the bill of exceptions in 35879 must be dismissed.
The plaintiff in error's motion to amend the bill of exceptions avails nothing since the co-defendant in whose favor the verdict was rendered was not served with the bill of exceptions, and it does not appear from the record that he waives service or agrees to be made a party. Carter v. Davidson, 138 Ga. 317, 75 S.E. 155.
In Western Union Telegraph Co. v. Griffith, supra, it is further held that where the verdict is against one of the defendants and in favor of his co-defendant, the former may appeal without naming his co-...
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