Mercer v. Braswell

• Court: Georgia Court of Appeals
• Writing for the Court: SMITH
• Citation: Mercer v. Braswell, 231 S.E.2d 431, 140 Ga.App. 624 (Ga. App. 1976)
• Decision Date: 10 November 1976
• Docket Number: No. 2,52448,Nos. 52447,s. 52447,2
• Parties: Edortha G. MERCER et al. v. J. C. BRASWELL et al. J. C. BRASWELL et al. v. Edortha G. MERCER et al

Page 431

231 S.E.2d 431

140 Ga.App. 624

Edortha G. MERCER et al. v. J. C. BRASWELL et al.

J. C. BRASWELL et al. v. Edortha G. MERCER et al.

Nos. 52447, 52448.

Court of Appeals of Georgia, Division No. 2.

Nov. 10, 1976.

Rehearing Denied Dec. 2, 1976.

Smith & Harrington, Will Ed Smith, Eastman, for appellants Edortha G. Mercer and others.

W. Ward Newton, Macon, for appellants J. C. Braswell and others.

W. Ward Newton, Lyons, Harris, Watkins, Taylor & Davis, Joseph H. Davis, Philip R. Taylor, Macon, for appellees J. C. Braswell and others.

Will Ed Smith, Eastman, Joseph H. Davis, Macon, for appellees Edortha G. Mercer and others.

SMITH, Judge.

The plaintiffs brought an action against the defendants seeking to recover damages for the negligent homicide of their daughter. The plaintiffs prayed for $5,674.73 damages for plaintiff Lewis Mercer, the father; $100,000 damages against Continental Insurance Company and $250,000 against Jesse Braswell and Wooten Transfer Company for the value of the life of Connie Mercer, the plaintiffs' daughter. The jury returned a verdict in favor of Wooten Transfer Company, Inc., and Continental Insurance Company. They found in favor of Mrs. Edortha Mercer against defendant Jesse Braswell in the amount of $7,500 and in favor of Mr. Lewis Mercer against the defendant Jesse Braswell in the amount of $170.24. Plaintiffs appeal the judgment entered on the verdict.

The evidence shows that the deceased, Connie Mercer, and two female companions went 'riding around' with defendant Braswell and Kenneth Elton on the evening of July 21, 1971. The group went to a beer store and bought a six pack of beer and a half pint of wine. They proceeded to ride around McRae and each of the girls took turns driving. Braswell began to drive after he had consumed three beers. While Braswell was driving, the automobile collided with a transfer truck and Connie Mercer was killed.

Defendant Braswell could not remember much about the accident; he had a vague impression of lights immediately prior to the collision, but he could not recall what happened at the wreck. One of the girls riding in the Braswell car testified that Braswell was driving fast and swinging the car back and forth in the highway. Immediately before the collision Elton mentioned some bright lights and defendant Braswell started slowing down. The car then started sliding to the left and struck the truck. Another passenger in the Braswell car testified that the truck's lights were on bright and blinded her immediately prior to the collision.

The truck driver testified that his lights were on dim prior to the collision. He said that it was raining and that it was better to drive in rainy weather with the lights on dim. He testified that he first saw the Braswell car when it was crossways on his side of the road about 300 feet ahead of the truck. He slammed on his brakes and came to a complete stop. The Braswell car immediately slammed into the stopped truck on the truck's side of the highway.

The truck was being operated for Wooten Transfer Company. In order to qualify as a common carrier, Wooten Transfer Company had on file with the Georgia Public Service Commission an insurance policy with Continental Insurance Company providing personal injury coverage in the amount of $100,000 for any one individual.

1. The trial judge granted six strikes to the defendant Braswell and six strikes to the defendants Wooten Transfer Company, Inc. and Continental Insurance Company. The plaintiffs were granted a total of six strikes. The plaintiffs objected to the court's allowing the defendants a combination of twelve strikes. They argue that the court erred in allowing more than six total strikes to the defendants.

'In a civil case, the defendants are not entitled to a separate trial, nor is each entitled to strike the full number of jurors, but all of the defendants must join in striking the jury.' Pool v. Gramling, 88 Ga. 653(4), 16 S.E. 52. See also New York Life Insurance Co. v. Hartford Accident and Indemnity Co., 181 Ga. 55(2), 181 S.E. 755; National Upholstery Co. v. Padgett, 111 Ga.App. 842, 143 S.E.2d 494; Butner v. Lord 95 Ga.App. 782, 98 S.E.2d 646; Ellis v. Geer, 36 Ga.App. 519(1), 137 S.E. 290.

Although the general rule does not allow additional strikes to co-defendants, appellees contend that they were properly allowed six additional strikes because of their adverse interests. They argue that their position is supported by our decision in State Highway Department v. Eagle Construction Co., 125 Ga.App. 678(4), 188 S.E.2d 810. That case allowed a third-party defendant six strikes in addition to the six allowed the original defendant. The court reasoned as follows: 'Code § 59-704 (formerly Penal Code § 858) provides: 'In civil cases and cases of misdemeanors in the superior court, each party may demand a full panel of 24 competent and impartial jurors from which to strike a jury . . .' In a case involving a misdemeanor charge where joint defendants were on trial for the offense, this court in Nobles v. State, 12 Ga.App. 355(1), 77 S.E. 184, in construing this Code section held: 'Where two or more persons are jointly indicted and put on trial for an offense for which one may be convicted and the others acquitted, each is entitled to the same number of peremptory challenges as would be allowed him if the case against him had been tried separately.' Since the Code section makes no distinction between misdemeanors and civil cases, we should, by analogy, hold that under that Code section the same rule would apply in civil cases.' (Emphasis supplied). Code § 59-704 was amended by Ga.L.1975, pp. 1331, 1332. The new code section makes no mention of jury selection in misdemeanor cases. Accordingly, the reasoning applied in the State Highway Department case would no longer be viable.

Further, a more important distinction exists between the State Highway Department case and the present situation. In our case, the judge granted additional strikes to codefendants; in the State Highway Department case, the court allowed additional strikes to a third-party defendant. In a third-party complaint action, the court has the right to try the main action and the third-party action separately. However, in the present suit, the judge could not have severed the actions against the individual defendants because the effectual result would have been to require the plaintiff to try the same case twice. See Lincoln Land Co. v. Palfery, 130 Ga.App. 407(5), 203 S.E.2d 597.

The criminal cases which allow additional strikes to co-defendants are based on the defendants right to sever. 'The right to challenge and the right to sever go hand in hand.' Nobles v. State, 12 Ga.App. 355, 356, 77 S.E. 184, 185. Similarly, the judge who has discretion to sever a third-party claim would also have the discretion to grant to third-party defendant six additional strikes. However, there is no right to sever claims against the joint tort-feasors in this case and no corresponding right to grant additional strikes.

The Georgia statutes provide for a list of 24 jurors comprising two panels of twelve each from which to strike a jury. Only 12 strikes are authorized, thus leaving a jury of 12 to try the case. See Code §§ 59-703, 59-704. There is no provision for the addition of additional jurors to the panels. Further, we can find no case law which would support the action of the trial judge under the present set of facts. It was error to allow the defendants six strikes each, over the objection of the plaintiffs, and to overrule the plaintiffs' motion for new trial complaining of that error. See New York Life Ins. Co. v. Hartford Accident and Indemnity Co., et al., 181 ga. 55(2), 181 S.E. 755.

2. Appellants set forth numerous alleged errors in their second enumerated error. From appellants' argument, we find that the second enumerated error complains in general of the court's failure to instruct the jury that the negligence of the deceased could not be compared with the negligence of the truck driver. This argument is without merit, as are all of the related arguments combined under this one enumeration of error.

The trial judge charged the jury in pertinent part: '. . . the negligence of Connie Mercer, if any, may not be used as comparative negligence against the driver, Norton, the agent of Wooten, unless it appears that such negligence was at least a part of the proximate cause of the event which brought about the injury.' Thus, the jury was instructed not to compare the negligence of the deceased with the negligence of the truck driver unless they found that the negligence of the deceased was a proximate cause of the collision. This charge was in accord with appellant's request to charge; it correctly stated the rule relating to comparing the independent negligence of a guest to the driver of another vehicle. See Brooks v. Williams, 127 Ga.App. 311, 315, 193 S.E.2d 231.

The appellant set forth various related arguments under this one enumerated error; however, they all relate to different 'ways' in which the trial judge allegedly prevented the application of the following rule: that the negligence of Connie Mercer in getting into the car with a driver less safe to drive, could not be compared with the negligence of the truck driver in failing to dim his lights and otherwise causing the wreck. As discussed above, the jury was specifically charged that the negligence of Connie Mercer could not be compared with the negligence of the truck driver unless the jury found that the negligence of Connie Mercer was at least a part of the proximate cause of the wreck. This was the proper rule to be applied by the jury. Appellant's enumeration of error number two is without merit.

3. Appellants requested the following charge: 'The jury is not permitted to make an award of money by lot or chance, nor shall the jury agree in advance that each juror write down a figure representing his...