Hulsey v. Sears, Roebuck & Co., 52052
| Decision Date | 04 May 1976 |
| Docket Number | No. 1,No. 52052,52052,1 |
| Court | Georgia Court of Appeals |
| Parties | Mark HULSEY by n/f et al. v. SEARS, ROEBUCK & COMPANY |
Joel M. Merren, Lawrence A. Cooper, Lawrence P. Martino, Atlanta, for appellants.
N. Forrest Montet, Atlanta, for appellee.
This case presents two novel issues: one is factual; the other is procedural.
The fact situation is unique in that one of two motorists injured in a collision of automobiles in a store parking lot sued only the owner of the realty on the basis that the proximate cause was the land-owner's negligence in designing and maintaining a parking area for its customers. Appellant's approach is to analogize this situation to be one which should be resolved on the basis of products liability law.
The procedural item is presented by the appellee. It is urged that this court interpret the Appellate Procedure Act of 1965 to hold that an appellant who files a new trial motion should not be permitted to enumerate errors which were not made a part of that motion in the court below.
We will refer to the parties in the positions which they possessed in the trial court. Plaintiffs were a minor son and his father. They sued Sears, Roebuck & Co. for damages arising out of a collision between the father's automobile being driven by the son and another vehicle. The incident occurred while the son was attempting to locate a vacant space in the Sears Roebuck parking area. The operator of the other car is not a party to this suit. The omission is on the theory that both drivers were in the exercise of ordinary care and that the negligence which was alleged to be the proximate cause was chargeable to the defendant. This assertion is stated thusly in appellant's brief:
The jury's verdict was for the defendant. This appeal is by plaintiff from the judgment denying a motion for new trial. Held:
1. We reject defendant's assertion that in instances where a motion for new trial is filed an appellant should be limited on appeal to the issues presented in such motion. Here the new trial motion was limited to the general grounds. When our appellate procedure was modernized, Section 2 of the 1965 statute which is § 6-702 of the Annotated Code 1 expressly stated that 'a motion for new trial need not be filed as a condition precedent to appeal or consideration of any judgment, ruling or order in any case, but in all cases where motion for new trial is an available remedy the party entitled thereto may elect to file the motion first, or appeal directly . . ..' Clearly, an appellant is entitled to argue all enumerations of error which are properly raised in addition to the matters contained in the new trial motion.
There is no validity to appellants' argument that such ruling permits 'sandbagging' of the trial judge because of the verbiage in the last sentence of § 16 of the statute (Code Ann. § 70-301). Therein, the trial judge is empowered on his own volition to correct any error subsequently recognized as to rulings during the trial as well as to exercise his discretion as to the weight of the evidence and grant a new trial on his own motion within 30 days from entry of the judgment. See Leverett, The Appellate Procedure Act of 1965, 1 Ga.State Bar Jour. 451, 458. This right to grant a new trial ex mero motu did not exist prior to the Appellate Procedure Act of 1965. McDonald v. Wimpy, 203 Ga. 498, 500, 46 S.E.2d 906. The judge here was cognizant of this power as shown by his comment to such effect during the trial when he ruled adversely to plaintiffs on the point discussed in the next division of this opinion.
Moreover, the record here shows that plaintiffs argued by written brief the same points presented in this appeal; therefore, the trial judge was not 'bushwhacked.'
2. Plaintiffs sought to introduce studies of six other parking lots in the Atlanta metropolitan area. The testimony including photographs was to be presented by a traffic engineer. In the capacity of an expert witness he had already given his testimony in support of the plaintiffs' contention that the design of the parking lot was such that he categorized it as 'a dangerous design.' (T. 274). The trial judge ruled that the proffered evidence as to other parking lots was not admissible for the purposes offered. This ruling was correct.
'Evidence of conditions at places other than the one in question is not admissible to show whether a condition at the place in question is dangerous, in the absence of other facts and circumstances establishing relevancy.' Underwood v. Atlanta & W.P.R.R. Co., 105 Ga.App. 340(5), 124 S.E.2d 758, 762. There was no evidence as to similarity of conditions between the Sears Roebuck parking lot and those submitted for comparison. Furthermore, 'What is customary or usual for property owners to do in the construction of their buildings in one part of a city is not material or relevant evidence in determining the duty of a property owner in a different part of the city.' City of Atlanta v. Sciple, 19 Ga.App. 694(6), 92 S.E. 28. See also Ludwig v. J. J. Newberry Co., 78 Ga.App. 871, 876, 52 S.E.2d 485.
3. In connection with the proffer of evidence as to the six other parking lots, plaintiffs stated: 'In addition to that, we have researched the records of DeKalb and Cobb County, Fulton County and dozens of other copies of records and we have prepared a review of the number of accidents in a specific period.' (T. 528). Plaintiffs aver that the court erred in ruling this data inadmissible.
'It is the general rule that in a suit for personal injuries the defendant's negligence cannot be shown by evidence of similar acts or omissions on other and different occasions.' Butler v. Central of Ga. Ry. Co., 41 Ga.App. 115(5), 151 S.E. 834. In...
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