Jenkins v. Chambers

• Court: Georgia Court of Appeals
• Writing for the Court: EBERHARDT
• Citation: Jenkins v. Chambers, 193 S.E.2d 222, 127 Ga.App. 200 (Ga. App. 1972)
• Decision Date: 27 September 1972
• Docket Number: Nos. 47481,47482,No. 3,s. 47481,3
• Parties: H. A. JENKINS v. W. F. CHAMBERS et al. CENTRAL OF GEORGIA RAILWAY COMPANY v. W. F. CHAMBERS et al

Page 222

193 S.E.2d 222

127 Ga.App. 200

H. A. JENKINS v. W. F. CHAMBERS et al.

CENTRAL OF GEORGIA RAILWAY COMPANY v. W. F. CHAMBERS et al.

Nos. 47481, 47482.

Court of Appeals of Georgia, Division No. 3.

Sept. 27, 1972.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Columbus, for appellants.

Kelly, Champion, Denney & Pease, S. E. Kelly, Jr., Edward Szczepanski, Columbus, for appellees. Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

On May 3, 1971, Will F. Chambers brought suit against Central of Georgia Railway Company and its engineer, Henry A. Jenkins, alleging that he was injured at a crossing collision while riding as a passenger in a truck being operated by one James Pate. Defendants answered on June 1, 1971, alleging that 'the crossing was not a blind crossing to operators of vehicles approaching it on Lamore Street, (and that) if James Pate, driver of the vehicle in which plaintiff was a passenger, had observed ordinary care in the operation of the vehicle he would have seen and heard (the Central of Georgia) train as it approached the crossing and would have stopped before driving onto the crossing and into the train.'

Three days after filing their answers defendants filed third-party complaints against one W. T. Chambers, alleging that he was owner of the truck driven by Pate; that Pate was his servant and acting within the scope of his employment; that Pate negligently approached the crossing, did not stop or slow down but negligently crashed the truck into the train; that Pate negligently ignored the train's bell and whistle and negligently failed to look to his left to see whether a train was approaching; that Pate did not stop at a point between fifty and fifteen feet from the nearest rail at the crossing as the law requires that he should have done; and that Pate's negligence was a contributing proximate cause of the collision.

On February 18, 1972, more than eight months after filing the above answers and third-party complaints against W. T. Chambers, defendants moved for leave to file third-party complaints against Pate himself, alleging that they had been unable to file them from August 25, 1971 to February 11, 1972, because of an injunction issued in another proceeding. When the hearing on the motions was held on June 8, 1972, the case had been pending for over thirteen months. The trial court denied the motions, and defendants appeal with certificates, contending that the trial court abused its discretion in denying the motions. ¹ Held:

1. In attempting to demonstrate that the trial court abused its discretion in denying the motions for leave to file third-party complaints against Pate, defendants purport in their brief to relate the arguments made or not made at the hearing and to state the reasons why the trial court denied the motions. In particular, it is contended that the trial court at the hearing below did not consider the timeliness of the motions as a factor governing the exercise of its discretion. Plaintiff does not agree with this statement of the case (see Rule 18(b)(1), this court) and since the matters asserted do not appear of record, they will not be considered on appeal. See, e.g., Jenkins v. Board of Zoning Appeals, 122 Ga.App. 412(2), 177 S.E.2d 204 and cits.; R. & S. Management Co. v. Huntley, 119 Ga.App. 712, 168 S.E.2d 626 and cits. Consequently, if the record reveals any sufficient reason for the trial court, in the exercise of its legal discretion, to deny the motions (the reason for the denial not being specified in the judgment), the judgment must be affirmed. Cf. Hill v. Willis, 224 Ga. 263, 267, 161 S.E.2d 281; Turk v. Jackson Electric Membership Corp., 117 Ga.App. 631, 161 S.E.2d 430.

2. The decision whether to grant or deny a motion for leave to implead a third-party defendant is one committed to the sound discretion of the trial court, and the timeliness of the motion is a factor governing the exercise of such discretion. Merritt-Chapman & Scott Corp. v. Frazier, 289 F.2d 849 (C.A. 9); General Electric Co. v. Irvin, 274 F.2d 175 (C.A. 6); Ryan Ready Mixed Concrete Corp. v. Franki Foundation Co., 229 F.2d 289 (C.A. 2); United States v. Shuman, 1 F.R.D. 251 (D.C.W.Va.); Bull v. Santa Fe Trail Transp. Co., 6 F.R.D. 7 (D.C.Neb.); Spaulding v. Parry Navigation Co., 10 F.R.D. 290 (D.C.N.Y.); Casey v. Calmar S.S. Corp., 138 F.Supp. 751 (D.C.Del.) Reid v. C. H. Cronin, Inc., 21 Fed.Rules Serv. 14a.132, Case 1 (D.C.N.Y.); Johns Hopkins Univ. v. Hutton, 40 F.R.D. 338 (D.C.Md.); Handlos v. Litton Industries, 51 F.R.D. 300 (D.C.Wis.); Capato v. Great Atlantic & Pacific Tea Co., 14 Fed.Rules Serv.2d No. 14a.132, p. 821 (D.C.Pa.); Leon v. Schrader, 14 Fed.Rules Serv.2d No. 14a.132, p. 1497 (D.C.Pa.); Goodman v. Neff, 251 F.Supp. 562 (D.C.Pa.); Rodeheaver v. Sears, Roebuck & Co., 34 F.R.D. 488 (D.C.Ohio); Braun v. Hecht Co., 21 F.R.D. 391 (D.C.N.Y.); McLouth Steel Corp. v. Mesta Mach. Co., 116 F.Supp. 689 (D.C.Pa); Holstlaw v. Southern R. Co., 9 F.R.D. 276, 278 (D.C.Mo.). Where the motion is not promptly made and the movant offers no reasonable excuse for the delay, the motion may properly be denied. Merritt-Chapman & Scott Corp. v. Frazier, 289 F.2d 849, supra; Capato v. Great Atlantic & Pacific Tea Co., 14 Fed.Rules Serv.2d No. 14a.132, p. 821, supra; Meilinger v. Metropolitan Edison Co., 34 F.R.D. 143 (D.C.Pa.).

3. In striving to establish an excuse for the delay, defendants have attached as Exhibits 'A' and 'B' to their brief copies of orders entered in another proceeding which it is contended enjoined them from attempting to make Pate a third-party defendant for the period August 25, 1971, until February 11, 1972. As previously indicated this excuse was alleged in the motion, but the orders were not introduced at the hearing.

Defendants argue that the trial court could have taken judicial notice of these orders. This is true only if the orders '(grew) out of the same litigation.' Fitzgerald &c. Co. v. Alpha Cement Co., 15 Ga.App. 174, 178, 82 S.E. 774; Gaker v. City of Atlanta, 211 Ga. 34(3), 83 S.E.2d 682; Woodruff v. Balkcom, 205 Ga. 445(2), 53...