Munday v. Brissette, 41609
| Citation | 148 S.E.2d 55,113 Ga.App. 147 |
| Decision Date | 07 January 1966 |
| Docket Number | No. 1,No. 41609,41609,1 |
| Parties | B. C. MUNDAY, Jr. v. Suzanne E. BRISSETTE et al |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court
1. Defendant Brissette was properly made a party appellee on appeal as required by Code Ann. § 6-802, as re-enacted by Ga.L.1965, pp. 18, 20; therefore, his motion to be dismissed as a party appellee is denied.
2. (a) Service of the notice of appeal was acknowledged by counsel for both of the other parties to the proceedings below, making them parties to the appeal, as required by re-enacted Code Ann. § 6-802.
(b) A judgment overruling a motion for a new trial is still a final and appealable judgment under The Appellate Practice Act of 1965 (Ga.L.1965, p. 18). The motion to dismiss the appeal on the two above-stated grounds is denied.
(c) The pending of the plaintiff's motion for a new trial in the court below does not render the appellant's appeal from the judgment overruling his motion for a new trial subject to dismissal on the ground of being prematurely brought.
3. The general grounds of the motion for a new trial are expressly abandoned.
4. Evidence that speed limit signs were erected by the Fulton County Public Works Department did not demand a finding that such action was not authorized by the Director of Public Safety so as to overcome the presumption of their official nature. Enumerated errors 3 through 9 are meritorious.
5. The charge complained of in enumerated error 10 was erroneous for the reason that the evidence demanded a finding that the plaintiff was an invitee.
6. The manner in which the speed law is violated may constitute gross negligence. Enumerated error 11 is meritorious.
7. The charge as to the measures of damages for personal injuries and for pain and suffering, under the facts of this case, was reversible error, permitting double damages for a single item of recovery. Enumerated error 16 is meritorious.
8. The incorrect charge as to the doctrine of emergency was apparently inadvertently given, since it was correctly charged at another point. This error will not likely reoccur on another trial.
9. Enumerated errors 13, 14, 18, 19, 20 and 21 and without merit.
10. The charge, that if the appellant was emerging from a private driveway he would not have the right of way, was justified by the evidence; enumerated error 15 is without merit.
11. The refusal to allow the filing of immaterial amendments to the answer was not error; enumerated errors 22 and 23 are without merit.
Suzanne E. Brissette brought an action against B. C. Munday, Jr. and John L. Brissette jointly and severally for damages for personal injuries, pain and suffering and loss of wages sustained in an automobile collision allegedly resulting from the negligence of both defendants. Count 1 of the petition as amended alleged substantially as follows: That the collision occurred at approximately 7:40 a.m. on February 12, 1962: 'that at all times herein mentioned Lake Forrest Drive where the hereinafter described collision occurred was a public street and highway of the State of Georgia extending in approximately a north-south direction having a maximum speed limit thereon of 35 miles per hour'; that defendant Munday's driveway intersects with the western side of Lake Forrest Drive; that the plaintiff was a 'passenger' in the front seat of an automobile operated by defendant Brissette; that the plaintiff was an invitee in the automobile because said defendant would not have had the use of the automobile unless the plaintiff had agreed to ride with him as a passenger; that defendant Brissette, driving north on Lake Forrest Drive, began passing another automobile at a speed of approximately 45 miles per hour; that, as he approached Munday's driveway in the western half of the roadway, Munday drove his automobile head first out of his driveway and into the path of the Brissette Vehicle, causing the latter to strike the front of Munday's automobile then veer off to its right and into a tree, causing the plaintiff's alleged injuries; that defendant Brissette was negligent in the following particulars: (a) In operating an automobile at a speed of approximately 45 mph, such conduct being negligence as a matter of law; and (b) In failing to have the vehicle which he was operating under control; and (c) In failing to maintain a proper lookout; and (d) In driving a vehicle at a speed greater than was reasonable and prudent under the then existing conditions; and (e) In failing to pass to the right of the Munday automobile; that defendant Munday's alleged negligence consisted of (a) Failing to yield the right of way to the vehicle driven by the other defendant, such conduct being negligence as a matter of law; and (b) Failing to stop at the entrance of his driveway to Lake Forrest Drive before proceeding to drive out into said roadway; and (c) Failing to look in both directions before driving out into said roadway; and (d) Failing to maintain a proper lookout; and (e) Failing to have his automobile under control; and (f) Failing to sound his horn at the defendant's automobile; and (g) Looking only to his left immediately before driving his automobile head-on into the roadway though he had actual knowledge that vehicles were approaching from his right on said road; that the combined negligence of both defendants was the proximate cause of the collision and resulting injuries to the plaintiff. Count 2 alleges substantially the same as count 1, with the exception that it alleges that the plaintiff was a guest passenger (rather than an invitee) and that defendant Brissette's acts constituted gross negligence (rather than mere negligence).
Defendant Munday filed an answer to the petition, in which he admitted the allegation as to the maximum speed limit of 35 mph, alleged that defendant Brissette was driving faster than 45 mph, and denied that the collision was due to any negligence on his part, alleging that it was due to the negligence of the plaintiff or of defendant Brissette or of both. Defendant Brissette filed an answer in which he denied any negligence on his part and neither admitted nor denied the allegation as to the existing speed limit. In the course of the trial defendant Munday tendered an amendment to his answer, to which defendant Brissette filed written objections, and the court sustained the objections and disallowed the amendment. The jury returned a verdict in the amount of $15,000 in favor of the plaintiff on both counts against defendant Munday only. On October 23, 1964, defendant Munday and the plaintiff both filed motions for a new trial. On July 30, 1965, the court overruled Munday's motion as amended and ruled that a ruling on the plaintiff's motion should await the disposition of the present appeal. On August 24, 1965, defendant Munday filed a notice of appeal from the orders of the court overruling his motion for a new trial and disallowing the amendment to his answer.
Lokey & Bowden, Hamilton Lokey, Glenn Frick, Atlanta, for appellant.
Bryan, Carter, Ansley & Smith, M. D. McLendon, N. Forrest Montet, Atlanta, for appellees.
1. Defendant Brissette filed a motion to be dismissed as a party appellee on the ground that there is no question pending before this court as to the correctness of the verdict as to him. Code Ann., § 6-802, as re-enacted by Ga.L.1965, pp. 18, 20 (Appellate Practice Act of 1965, § 4) provides in part as follows: 'All parties to the proceedings in the lower court shall be parties on appeal, and shall be served with a copy of the notice of appeal in the manner hereinafter prescribed.' (Emphasis supplied.) The above language of the Act is all-inclusive and mandatory, with no exceptions provided. Defendant Brissette, already having been served with a copy of appellant's motion for a new trial, was made a party to the motion by order of the court allowing appellant's amendment to that effect. Furthermore, some of the grounds of appellant's motion as amended were based on alleged errors which could have been unduly beneficial to the co-defendant, hence prejudicial to the appellant. See Atlantic Coast Line R. Co. v. Coxwell, 93 Ga.App. 159, 167(6), 91 S.E.2d 135. This motion to dismiss is therefore denied.
2. (a) Appellee Suzanne Brissette filed a motion to dismiss the notice of appeal on two grounds, one of which is that the appellant has not made all parties to the proceedings in the lower court a party on appeal as required by Code Ann. § 6-802, as re-enacted by Ga.L.1965, pp. 18, 20 (Appellate Practice Act of 1965, § 4). The record shows that service of the notice of appeal was acknowledged by the attorneys for both the plaintiff and defendant Brissette, therefore this ground is without merit. Even if there had not been service on all parties, however, this would not work a dismissal. Code Ann. § 6-809(a), as re-enacted by G.L.1965, pp. 18, 29 (Appellate Practice Act of 1965, § 13(a)).
(b) The other ground of the plaintiff's motion is that neither of the decisions or judgments appealed from in the notice of appeal (i.e., overruling of the motion for a new trial and disallowing the amendment to the answer) is not appealable, thus subjecting the appeal to dismissal under Code Ann. § 6- 809(b)(2) (). The law in this state prior to the enactment of the above act was that an order denying a motion for a new trial from a general verdict was final, even though no judgment has been entered on the verdict. Alred v. Alred, 164 Ga. 186, 137 S.E. 823; Poole v. McEntire, 209 Ga. 659, 661(1), 75 S.E.2d 20. Code Ann. § 6-701(a), as re-enacted by Ga.L.1965, p. 18, which provides the instances in which appeals may be taken to this court, does not specifically exclude rulings on motions for new trials, but provides generally for appeal...
To continue reading
Request your trial
-
Lops v. Lops
...language of Ga.Code Ann. § 6-701 "in somewhat different terminology.... [N]o change in result was intended." Munday v. Brissette, 113 Ga.App. 147, 151, 148 S.E.2d 55, 60, rev'd on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966) (citing E. Freeman Leverett, The Appellate Procedure Act of 1......
-
McClure v. Gower
...OCGA § 5-6-37 states that "all parties to the proceedings in the lower court shall be parties on appeal." See Munday v. Brissette, 113 Ga.App. 147, 150(1), 148 S.E.2d 55 (1966), rev'd on other grounds sub nom., Brissette v. Munday, 222 Ga. 162, 149 S.E.2d 110 However, OCGA § 5-6-38(a) provi......
-
Pickett v. Taylor
...process which would render the speed limit void. E.g., Harper v. Brown, 122 Ga.App. 316, 176 S.E.2d 621 (1970); Munday v. Brissette, 113 Ga.App. 147, 148 S.E.2d 55, rev'd on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966); see generally, 2 Blashfield Automobile Law & Practice § 105.18 The......
-
Denham v. Shellman Grain Elevator, Inc.
...the judgment on the verdict whether or not they were grounds of the motion for new trial. However, the case of Munday v. Brissette, 113 Ga.App. 147(2b), 148 S.E.2d 55 (in which the writer did not participate) holding that a direct appeal could be had from the overruling of the motion for ne......