Naimat v. Shelbyville Bottling Co.

• Decision Date: 04 November 1999
• Docket Number: No. A99A2288, No. A99A2289.
• Citation: 240 Ga. App. 693,524 S.E.2d 749
• Parties: NAIMAT et al. v. SHELBYVILLE BOTTLING COMPANY et al. Unique Transportation Systems, Inc. v. Naimat et al.
• Court: Georgia Court of Appeals

524 S.E.2d 749

240 Ga. App. 693

NAIMAT et al. v. SHELBYVILLE BOTTLING COMPANY et al.

Unique Transportation Systems, Inc. v. Naimat et al.

Nos. A99A2288, A99A2289.

Court of Appeals of Georgia.

November 4, 1999.

Starr & Daniel, Kenneth R. Starr, Strang, Fletcher, Carriger, Walker & Hodge, James R. Rogers, Cattanooga, TN, for Naimat et al.

Carr, Tabb & Pope, W. Pitts Carr, Render C. Freeman, Atlanta, for Shelbyville Bottling Company et al.

Henry, Kinney, Kemp, Sponcler, Joiner & Tharpe, Henry C. Tharpe, Jr., Robert A. Cowan, Dalton, for Unique Transportation Systems, Inc. et al.

Luther-Anderson, Alaric A. Henry, Cattanooga, TN, for Clark et al.

Davis & Kreitzer, John W. Davis, Jr., Rossville, for Watts. McMURRAY, Presiding Judge.

Judith Bash was killed in a multi-vehicle collision while operating her own vehicle on Interstate 75 northbound in Catoosa County, Georgia. Her children, plaintiffs-appellants Kimberley L. Naimat, individually and as administratrix of the estate of Judith Bash, David Bash, William Spurling and Phillip Spurling ("the Bash plaintiffs"), brought this tort action to recover for the alleged wrongful death of Ms. Bash. Defendants-appellees are Shelbyville Bottling Company d/b/a Pepsi-Cola Bottling Company of Chattanooga and its driver, Michael Romines; Unique Transportation Systems, Inc., a motor common carrier, and its driver, Charles Laverne Ross, Jr.; Unique's insurer, United National Insurance Company; and another driver, Caroline Clark. In a special verdict, the jury determined that the death of Judith Bash was not caused by the negligence of the defendants in operating their vehicles. In Case No. A99A2288, the Bash plaintiffs appeal from the denial of their motion for new trial, enumerating the allocation of peremptory challenges, the alleged introduction of testimony on the ultimate issue for the jury, objections to closing argument, and the exclusion of opinion testimony from plaintiffs' accident reconstruction expert. In Case No. A99A2289, Unique Transportation Systems cross-appeals, enumerating the refusal of the trial court to substitute the federal trustee in bankruptcy for Unique as the real party in interest. Held:

Case No. A99A2288

1. Defendant Caroline Clark counterclaimed against the estate of Judith Bash, cross-claimed against the other defendants, and, jointly with her husband Bruce Clark ("the Clark plaintiffs"), brought a third-party action against Daniel L. Watts. This third-party case was consolidated with the Bash plaintiffs' case for trial. In order to strike a petit jury of twelve, the trial court ruled that, absent an agreement among the parties, the two sets of plaintiffs would share six peremptory strikes with three strikes for the Bash plaintiffs collectively and three for the Clark plaintiffs, while the three sets of remaining defendants would share six peremptory strikes, with two strikes per defendant. The Bash plaintiffs enumerate this allocation as error, contending the trial court impermissibly granted nine peremptory challenges to their adversaries, while according the Bash plaintiffs only three strikes. Because the trial court did not abuse its discretion in realigning the parties for purposes of determining peremptory challenges, we find no error.

In the superior court, after a panel of 24 competent and impartial jurors is qualified, "the parties or their attorneys may strike alternately, with the plaintiff exercising the first strike, until a jury of 12 persons is impaneled to try the case." OCGA § 15-12-122(b). So in the typical civil case, with one plaintiff and one defendant, each side gets six peremptory strikes. But the rule in Georgia for over a century has been that multiple parties receive the same total number of peremptory challenges, in the aggregate, as an individual party. Sheffield v. Lewis, 246 Ga. 19, 20(I), 268 S.E.2d 615. Thus, multiple civil defendants who are not entitled to separate trials, such as the alleged tortfeasor-defendants in this case, are not entitled to strike the full number of jurors each, but must join in striking the jury. Pool v. Gramling, Spalding & Co., 88 Ga. 653, hn. 4, 16 S.E. 52. An exception to this rule exists where one of the parties has a 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 (1912 [1913])." Sheffield v. Lewis, 246 Ga. at 20(I), 268 S.E.2d 615, supra. "In a third-party complaint action, the court has the right to try the main action and the third-party action separately." Mercer v. Braswell, 140 Ga.App. 624, 626(1), 231 S.E.2d 431. And, rather than try the cases separately, the trial judge has the discretion under OCGA § 9-11-21 to realign the parties on such terms as are just, before allocating peremptory strikes. Cawthon v. Waco Fire &c. Ins. Co., 259 Ga. 632, 633, n. 1, 386 S.E.2d 32 and accompanying text. OCGA § 9-11-21 makes no distinction as to parties plaintiff and parties defendant. Paine v. Thomas, 228 Ga. 519, 521(2), 186 S.E.2d 737. In the case sub judice, we recognize that, as a mere individual party defendant, Caroline Clark's adverse interests with her other co-defendants is not a good ground for diminishing the number of peremptory challenges permitted the Bash plaintiffs. Cawthon v. Waco Fire &c. Ins. Co., 259 Ga. at 634, 386 S.E.2d 32, supra; Sheffield v. Lewis, 246 Ga. at 22(II), 268 S.E.2d 615, supra. Still, she and her husband are also third-party plaintiffs. In our view, the Bash plaintiffs have not shown the trial court abused its broad discretion in realigning the Clark plaintiffs, plaintiffs in the consolidated third-party action, as parties plaintiff for the purpose of allocating peremptory challenges. Consequently, the trial court's allocation of peremptory challenges in this case was such that the multiple plaintiffs collectively exercised the six peremptory challenges envisioned for an individual party and complies with the longstanding Georgia rule and is affirmed.

2. The second enumeration contends the trial court erroneously allowed a defense witness to "testify concerning the ultimate issue at trial." In support of this contention, plaintiffs submitted a partial transcript, indicating the following transpired on redirect examination of witness Samples:

[DEFENSE COUNSEL]: Mr. Samples, based on what you saw out there on that day, was there anything Mike Romines could have done to avoid this collision? [SAMPLES]: No, there was nothing in the world. [PLAINTIFFS' COUNSEL]: Objection, your honor. [DEFENSE COUNSEL]: A witness can testify as to their opinions based on things that they saw, and can reasonably draw from the things that they saw. This man saw as much as anybody, if not more. [PLAINTIFFS' COUNSEL]: He testified that he glanced to the left, and right, and doesn't know—. [DEFENSE COUNSEL]: That just goes to his credibility. [PLAINTIFFS' COUNSEL]: Our objection is stated, I think the testimony should be stricken. [THE COURT]: Overruled.

Nothing more than plaintiffs' bare "objection" was stated for the record, in that portion of the transcript designated by plaintiffs. Ordinarily, that is an insufficient basis for this specific assignment of error, presenting nothing for review on appeal. Smith v. Smith, 223 Ga. 560, 561(7), 156 S.E.2d 901. Accord Jackson v. Meadows, 157 Ga.App. 569, 575(7), 278 S.E.2d 8. But even if this objection were properly made and preserved, based upon the responses of defense counsel, the trial court did not err in admitting the testimony of what appears to be (from plaintiffs' designation of the record) eyewitness testimony to the chaos of a sudden multivehicle collision on an interstate highway.

"It is well settled that when the subject matter of an inquiry relates to numerous facts perceived by the senses, to a series of instances passing under the observation of a witness, or to a variety of circumstances and a combination of appearances, which, under the limitations of language, cannot be adequately described and presented to the jury with the same force and clearness as they appeared to the witness, the witness may state his impressions drawn from, and opinions based upon, the facts and circumstances observed by him or the effect which they produced upon his mind. This procedure is sometimes spoken of as a `shorthand' rendering of facts or as testimony of collective facts and has been applied to the admission of lay opinion evidence as to the location of the impact as respects a motor vehicle collision." [Cit.]

Dual S. Enterprises v. Webb, 138 Ga.App. 810, 811(2), 227 S.E.2d 418. "If the circumstances are such as to render the inference superfluous, it is excluded; if not [but is of some assistance to the jury], it is admitted." Pride v. State, 133 Ga. 438, 440(1), 66 S.E. 259. In this instance, the impression or opinion of eyewitness Samples, that, under the totality of the circumstances as Samples perceived them, there was "nothing in the world" the defendant driver Romines could have done to avoid impact, was not superfluous, and the trial court did not err in admitting this testimony over plaintiffs' tacit objection that this amounted to an impermissible opinion as to the ultimate issue for the jury. McMichen v. Moattar, 221 Ga.App. 230, 232(2), 470 S.E.2d 800.

3. The trial court had partially granted third-party defendant Daniel L. Watts' motion in limine, prohibiting "opinion testimony from any police officer or any expert witness that the actions of any party ... constituted negligence." For purposes of this appeal, we assume that ruling was a blanket...