King Cotton, Ltd. v. Powers, s. 77641

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtSOGNIER; CARLEY; DEEN
Citation190 Ga.App. 845,380 S.E.2d 481
Docket NumberNos. 77641,77660,s. 77641
Decision Date02 March 1989

Perry, Walters & Lippitt, C. Richard Langley, Albany, for appellant.

Cannon & Meyer von Bremen, William E. Cannon, Jr., Albany, for appellees.


Michael Scott Powers, individually, as executor of the last will and testament of his deceased wife, Vicki Saunderson Powers, and as next friend of his children, Erin and Megan Powers, brought suit against King Cotton, Ltd., the owner and operator of a cotton gin, Robert Frank Cobb, the driver of a tractor trailer truck, and Wayne Peavy d/b/a Peavy Trucking, Cobb's employer, for damages incurred in an automobile accident. The case was tried before a jury, and after the close of the evidence, Cobb and Peavy settled with Powers and were dismissed from the suit. The jury returned a verdict against King Cotton, and it appeals. Powers, Cobb, and Peavy cross-appeal from certain rulings of the trial court.

The record reveals that in 1986, King Cotton opened a cotton gin in Lee County, Georgia. The property on which the gin is located is adjacent to State Route 32, a two-lane rural road. There is a dirt driveway known as the "main" or "western" drive leading from the highway to the gin on King Cotton's property. There is also a field road located on abutting property which intersects State Route 32 just beyond the easternmost boundary of King Cotton. No clearly marked boundary lines exist between the gin property and the adjoining property, but it is uncontroverted that the field road is not on King Cotton's property when it intersects the highway, and that some vehicles used this field road to approach and leave the gin.

Robert Cobb, who drove a tractor trailer rig for Peavy and had been driving trucks for 27 years, had pulled into and out of King Cotton's gin approximately 20 to 30 times prior to October 11, 1986. Cobb testified that he could use the main drive to enter the gin property when his truck was empty, but that when the flatbed trailer was loaded with cotton bales the condition of the main road made it difficult to exit the property without tipping the trailer and losing some bales, and thus he used the field road to leave the gin. Cobb testified, however, that turning left from the field road onto the state road to travel east toward Cordele, his hauling destination, was a difficult maneuver in which he had to pull into the highway across both lanes, stop and back up a few feet to alter the angle of his approach to the eastbound lane, and then start forward again.

The evidence showed that on Saturday, October 11, 1986, Cobb came to the gin in the morning and hauled a load of cotton bales to Cordele. Later that day Cobb returned to the gin for his second haul of the day. After loading his truck, Cobb left the gin premises by the field road. Prior to beginning the turn onto the state road, Cobb noticed the headlights of a vehicle traveling toward him in a westerly direction, but estimated that vehicle was over a mile away, and calculated that he had sufficient time to complete the maneuver safely. The accident occurred when the approaching vehicle, a van driven by Vicki Powers in which the remaining members of the Powers family were passengers, struck the trailer of the truck driven by Cobb, which was positioned across both lanes of the state road.

1. Appellees Powers (hereinafter Powers) have moved this court to dismiss the appeal on the ground that the original notice of appeal was filed on behalf of King Cotton, Inc., rather than King Cotton, Ltd. There has never been any doubt or question that the correct name of King Cotton is King Cotton, Ltd. It is further uncontroverted, however, that although the original pleadings in the trial court referred to King Cotton as King Cotton, Ltd., during the course of the litigation it was referred to variously as "King Cotton," "King Cotton, Inc.," and "King Cotton Co.," among other appellations. In fact, the verdict and judgment below refer to King Cotton, Inc., although there is no question that the intendment of the verdict and judgment was to hold King Cotton, Ltd. liable. " 'It is an elementary rule of pleading that substance, not mere nomenclature, controls.' [Cit.]" Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 539, 314 S.E.2d 903 (1984). In view of those facts, we grant King Cotton's motion to amend the notice of appeal to correct the misnomer, and Powers's motion to dismiss is denied. See Block v. Voyager Life Ins. Co., 251 Ga. 162-163(1), 303 S.E.2d 742 (1983).

2. At the close of the evidence, the jury was informed by counsel for Powers that he had been instructed by the court to make the following statement to them: "In consideration of the payment of $750,000.00 to the Plaintiffs by Canal Insurance Company, the Plaintiffs have dismissed Robert Cobb and Wayne Peavy as Defendants." In its charge, the trial court instructed the jury that "the settlement of this case by two of the Defendants should not be considered by you as having any effect whatsoever on the question of liability of the remaining Defendant [King Cotton]. The liability of [King Cotton], if any, is a matter for you to determine under the evidence and the charge given you by the Court. The matter of a payment to the Plaintiffs of any amount and the dismissal of those parties from this action is not a matter for consideration by the jury. If you find [King Cotton] liable in this matter you are to determine in your enlightened conscience the amount of damages to which the Plaintiffs will be entitled without consideration of any amount previously paid to the Plaintiffs." It is evident from various colloquies in the record between counsel and the court that the court and all parties intended that the court instruct the jury to bring in a total damage figure for Powers's injuries, from which the amount paid by the other two defendants would be set-off to arrive at the amount of King Cotton's liability.

Before the jury returned its verdict, counsel for King Cotton informed the judge that he foresaw a problem in applying any set-off because there was more than one plaintiff and the jury would be unlikely to award them equal amounts, yet Powers had not informed the court how the settlement was to be allocated among the various plaintiffs. The court did not agree that it would be a problem, saying that it "thought we had resolved the issue of set-off by charging this jury ... that they were to find the full value of the claims ... [w]hich, obviously, is a ruling that says that we are going to set-off the $750,000.00 against the full value of the claims." (Emphasis supplied.) The jury returned its verdict for Powers in the total amount of $800,000, with $100,000 to Michael Powers individually for his own damages; $500,000 to Michael Powers for the value of his deceased wife's life; $125,000 to Michael Powers as Executor under the will of his deceased wife; $50,000 to Erin Powers; and $25,000 to Megan Powers. Thereafter, counsel for Powers requested that the court inquire of the jurors whether they had, in fact, deducted the $750,000 settlement before arriving at the amount of their verdict, and the court refused. The court also refused King Cotton's request that judgment be entered against it immediately for $50,000--the difference between the total amount of the jury's verdict and the settlement--and took the matter under advisement for several hours. When the proceedings resumed, counsel for Powers advised the court that $720,000 of the $750,000 settlement was being allocated to Michael Powers individually. Because the bulk of the $800,000 jury verdict was allocated not to Michael Powers, individually, but to him for the value of the life of his deceased wife, and because the jury awarded only $100,000 to Michael Powers individually, the settlement allocation maximized the amount of the jury verdict for which King Cotton was liable.

Approximately one month after the rendition of the verdict Powers solicited affidavits from each of the members of the jury, all of whom averred (in identical language) that their $800,000 verdict against King Cotton was intended to be awarded in addition to the $750,000 settlement. Almost a month after considering these affidavits the trial court entered judgment against King Cotton for the full amount of the jury's verdict and denied any set-off of the settlement, finding in its order that its charge regarding the settlement had been confusing to the jury, and "accepting" the juror affidavits as "curing" the ambiguity in the charge.

The trial court erred by so doing. We agree with the trial court that its charge on the jury's consideration of the settlement was confusing. We can discern no purpose in disclosing to the jury the amount of the settlement if the jury was not to consider the settlement in awarding damages to the plaintiffs. Although it is certainly clear from the record that the intent of the trial court was to instruct the jury to return a verdict for the full amount of damages due Powers without setting-off the settlement, the language employed by the court was ambiguous and, when coupled with the fact that the jury was informed of the exact amount of the settlement, tended to confuse and mislead the jury into thinking that the amount of the settlement disclosed to them should be considered and set-off in arriving at their award. See generally Shugart v. Dept. of Transp., 184 Ga.App. 692-694(1), 362 S.E.2d 474 (1987). As we conclude that the charge given could have confused a jury of ordinary capacity and understanding, it constituted reversible error. See Koppar Corp. v. Robertson, 186 Ga.App. 856, 857-858(1), 368 S.E.2d 807 (1988).

We further find, as a matter of law, that this confusion could not have been "cured" by...

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