National Upholstery Co. v. Padgett
| Decision Date | 01 June 1965 |
| Docket Number | No. 1,41325,Nos. 41324,s. 41324,1 |
| Citation | 143 S.E.2d 494,111 Ga.App. 842 |
| Parties | NATIONAL UPHOLSTERY COMPANY v. Edwin D. PADGETT. NATIONAL UPHOLSTERY COMPANY v. Estelle B. PERKINS |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. It was not error, upon the consolidation for trial of two actions against the same defendant for personal injuries sustained in the same collision, to allow six peremptory challenges to each side, over the objection of the defendant that it should be entitled to 12 such strikes.
2. A plaintiff may during the course of litigation dismiss one of two defendants, taking from him a covenant not to sue, without thereby prejudicing his action against the remaining defendant, the cause of action being joint and several.
3-6. The excerpts from the charges of which complaint is made show no reversible error.
7. A losing party may, if he wishes to assure himself that the verdict was unanimous, request that it be polled to ascertain this fact. Failure to do so constitutes a waiver of his right to complain that, in the absence of an instruction by the court that the verdict must be unanimous, the jury might in fact have brought in a majority rather than a unanimous verdict.
8. Where a vehicle is parked along a highway in an illegal manner at night, without lights, under conditions of impaired visibility, the negligence of the driver of an automobile proceeding in the same direction in failing to observe and avoid it will not insulate the owner of the parked vehicle against its own negligence, there being no negligence on the part of the injured guest passengers on whose behalf these actions were brought. The driver of the parked vehicle should, in the exercise of ordinary care, have anticipated that its negligence combined with the negligence of others might cause injury to third persons.
For a more complete statement of the fact allegations in these cases see National Upholstery Co. v. Padgett, 108 Ga.App. 857, 134 S.E.2d 856, where demurrers to the petition were overruled. The trial resulted in verdicts for the plaintiffs, and the defendant excepts to the denial of its motion for new trial.
Sharpe, Sharpe & Hartley, T. Malone Sharpe, Lyons, for plaintiff in error.
Barrie L. Jones, Alma, for defendant in error.
1. Where civil cases were consolidated for trial by consent of counsel it was held in Ellis v. Geer, 36 Ga.App. 519(1), 137 S.E. 290, over complaint of the defendants that each was entitled to six peremptory challenges that the defendants jointly were entitled to only six strikes. In felony cases under a single indictment where one defendant might be convicted and the other acquitted, and the defendants do not elect to sever, each is entitled to his full number of challenges, and the State to half as many. Butler v. State, 92 Ga. 601, 19 S.E. 51. While there is some diversity of authority on the permissible number of challenges where actions by two plaintiffs against a single defendant are consolidated for trial (in which connection see 136 A.L.R., Anno., p. 417), the question arose in Keplin v. Hardware Mutual Casualty Co., 24 Wis.2d 319, 129 N.W.2d 321, 130 N.W.2d 3, on exception of the plaintiffs at having to share three peremptory challenges, a like number being granted the defendant. The court held: 'Although there is a distinction between two cases being consolidated into one action and being consolidated for trial, we think in the absence of adverse interest the plaintiffs in the several cases consolidated for trial may be treated as one party.' The exception in this case is by the single defendant, on the consolidation by consent for trial of actions by two plaintiffs, one a guest passenger and the other the personal representative of a deceased guest passenger of an automobile which collided with its truck, the exception being grounded on the fact that each side was allowed six challenges whereas it contends it should have had six as to each of the plaintiffs. The single defendant would under no circumstances be entitled to more challenges than the total of those awarded to the separate plaintiffs, and as a matter of fact the defendant makes no showing that it exhausted the number allotted to it. Since the court's decision was, if anything, favorable to the defendant by treating the sides, rather than the parties equally, in cannot under these circumstances complain.
2. A plaintiff who has sued two defendants on a joint and several cause of action may pendente lite voluntarily dismiss his petition against one of them and give a covenant not to sue without effecting a settlement of the case as to the other defendant. Register v. Andris, 83 Ga.App. 632, 64 S.E.2d 196; Otis v. Wren Mobile Homes, Inc., 111 Ga.App. 649, 143 S.E.2d 8. The instrument, being in writing and plain and unambiguous in its terms, will not by parole evidence be construed to mean something other than its plain intendment. The covenant not to sue the host driver who was dismissed as a party to this action recites that 'it is entered into for the purpose of avoiding litigation and * * * the undersigned expressly reserves the right to sue any other person or persons against whom she may have any claim on account of damages arising out of the above described accident.' The covenant will not be construed to have been intended as an extinguishment of the cause of action against the remaining defendant simply because the plaintiff, a minor with no legal experience, when asked on cross examination by the defendant's attorney whether it was not his intention to settle the case with his host driver, replied, 'Yes, sir, I reckon.' Padgett, we may feel sure, had no knowledge whatever of the legal consequences of effecting a settlement or release of the entire claim as opposed to a covenant not to sue a particular party, and to impute such an intent to him in the face of the language of the instrument would be nothing short of ambush.
3. Complaint is made that the court expressed an opinion as to the value of the life of the other plaintiff's decedent by stating the plaintiff's contentions as follows: 'The petition is brought by the petitioner as the mother of the deceased child to recover of the defendant the full value of the life of such child, as provided by the laws of this state, the full value of the life of Linwood Bennett, Jr., deceased, being $500,000, which she says she is entitled to recover.' He also stated: 'She brings this petition for the full value of the life in the amount of $500,000,' and followed this by comprehensive instructions on how the value of the life of the decedent should be determined by the jury. The verdict was for only a small fraction of this amount. The jury could not reasonably have been misled into believing that the court was instructing them that the value of the decedent's life was to be taken as stated in the petition.
4. As to special ground 4 of the amended motion for a new trial, complaining of seven isolated excerpts from the charge, no error is shown because (a) they were followed by other excerpts from the charge contended to be incorrect but on which error is not assigned, or (b) because one of the excerpts may have been defective, where other excerpts contained in the same ground were not subject to the defect. These assignments of error are not good. Hunt v. Williams, 104 Ga.App. 442(3), 122 S.E.2d 149; Cole v. Pepsi-Cola Bottling Co., 65 Ga.App. 204(3), 211, 15 S.E.2d 543.
5. Instructions on future pain and suffering were excepted to on the ground there was no issue before the jury and no evidence 'that Edwin Donald Padgett will suffer any 'future' mental and physical pain or suffering.' It appeared from the evidence that the injuries occurred December 11, 1962. The trial was held November 17, 1964, almost two years later. The...
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