O'Neil v. Moore, 43634

• Decision Date: 05 September 1968
• Docket Number: No. 3,No. 43634,43634,3
• Citation: 118 Ga.App. 424,164 S.E.2d 328
• Parties: Bobby O'NEIL et al. v. Martha L. MOORE
• Court: Georgia Court of Appeals

Page 328

164 S.E.2d 328

118 Ga.App. 424

Bobby O'NEIL et al. v. Martha L. MOORE.

No. 43634.

Court of Appeals of Georgia, Division No. 3.

Sept. 5, 1968.

Rehearing Denied Oct. 1, 1968.

Syllabus by the Court

1a. The court will not consider an enumeration of error unsupported in the brief by citation of authority or argument.

b. The court will not presume harmful error based on the failure of the lower court to follow the procedural requirements of Section 17 of the Appellate Practice Act, as amended, and not directed to any error in instructions as given or omitted.

2. Where the defendants are shown to be minors in the plaintiff's petition, and a rule nisi issues, but the defendants, born in 1947 and 1948, and represented at all times by competent counsel, take no action to insist upon the appointment of a guardian ad litem, and the case proceeds to verdict and judgment on November 7, 1967, it is not error to refuse to set aside the judgment on motion thereafter made on the ground that the court failed to appoint a guardian ad litem prior to verdict and judgment.

3. Under the evidence of this rearend collision a verdict was authorized, but not demanded, for either the plaintiff or the defendants, and the trial judge did not err in refusing to direct a verdict for the defendants or to grant a judgment n.o.v.

This is a personal injury action arising out of a rear-end collision between two passenger automobiles on a throughway. The plaintiff was driving the rear vehicle in the lane next to the median which struck the front vehicle, which was stopped. The defendants are the driver and owner of the front vehicle. They jury found for the plaintiff, and the defendants appeal from this judgment and an order denying their motion to set aside the judgment.

Greer & Murray, Malcolm S. Murray, Russell G. Turner, Sr., Atlanta, for appellant.

John N. Crudup, Gainesville, for appellee.

JORDAN, Presiding Judge.

1. The defendants as the appellants here limit their brief to four issues, but in respect to two of these issues they merely restate the enumerations of error to the effect that the court erred in admitting the testimony of a police officer as to how the collision occurred, and that he also erred in certain respects in acting on requested instructions, repeating in respect to the latter the citation in the enumerated error to Code Ann. § 70-207, which is codified from Section 17 of the Appellate Practice Act as amended. See Ga.L.1965, pp. 18, 31; 1966, pp. 493, 498.

The first of these two issues is clearly unsupported by citation of authority or argument, and Rule 17(c)(2) of this court applies. If in respect to the second we regard the citation to Code Ann. § 70-207 as sufficient to avoid application of Rule 17(c)(2), the enumeration, as repeated in the brief, is not directed to any error in the instructions, as given or omitted, but instead refers only to ancillary procedural matters, i.e., an asserted refusal to permit counsel to state into the record his objection to the failure and refusal to give certain written requests to charge, the failure to file with the clerk all requests as submitted, and the judge's failure to inform counsel before argument to the jury of his proposed action on requests. The cited law is explicit (see Subdivisions (a) and (b)) as to how the trial court shall proceed, so as to enable counsel to preserve issues as to charges given or omitted, including requested instructions, but even if the proceedings were not conducted by the trial court in accordance with these requirements for the reasons set forth in the enumeration, and from the record and transcript it is by no means clear what actually took place, we will not presume harmful error from this showing alone.

2. The plaintiff in her petition alleged the defendant's minority and prayed for the appointment of a guardian ad litem. A rule nisi issued to the defendants, but the record is silent as to any further action until the defendants, after verdict and judgment, moved to set aside the judgment of November 7, 1967, because no guardian ad litem was ever appointed. There is no dispute that the defendant owner of the front vehicle was born on January 24, 1947, and that his defendant brother, the driver, was born on August 15, 1948. The court, in refusing to set aside the judgment, determined that the defendants had waived any right to representation by a guardian ad litem, and expressly predicated his determination on the provisions of Subsection 9(a) of the Civil Practice Act, infra. In his order he notes the fact of representation by competent counsel directly on behalf of the individual defendants and for an intervening insurer defending the action on account of the plaintiff's uninsured motorist coverage.

Although the case arose before the effective date of the new Civil Practice Act on September 1, 1967, the jury trial took place thereafter without an affirmative determination by the trial court to apply the old procedure, and the new procedure was automatically applicable. See Ga.L.1966, pp. 609, 671; La.L.1967, p. 8; Ga.L.1967, pp. 226, 250; Code Ann. § 81A-186. Under the law before the Act and still in effect the court could appoint a guardian ad litem to protect the interests of a minor in litigation. Code § 49-111. The new Act provides in pertinent part that the court shall appoint a guardian ad litem for an infant not otherwise represented in an action or shall make such order as he deems proper for the protection of the infant. Subsection 17(c) of the Act, Ga.L.1966, pp. 609, 630; Code Ann. § 81A-117(c). The Act expressly relieves a party of the necessity of alleging the capacity to sue or be sued, and places upon the party desiring to raise the issue the obligation to do so by specific negative averment. Subsection 9(a) of the Act, Ga.L.1966, pp. 609, 620; Code Ann. § 81A-109(a). A party waives the issue of jurisdiction over the person, and certain other matters, if he does not raise the issue in a responsive pleading, as originally filed, or omits the issue in a motion properly made when the defense is then available. See Subsections 12(g) and (h)(1) of the Act as amended, Ga.L.1966, pp. 609, 624; Ga.L.1967, pp. 226, 231; Code Ann. § 81A-112(g), (h)(1).

While the appellants rely on holdings prior to the Civil Practice Act (e.g., Brown v. Anderson, 186 Ga. 220, 197 S.E. 761), to the effect that waivers or estoppels, with certain exceptions, do not operate against infants, in the absence of compliance with statutory requirements for a guardian ad litem, we do not consider such holdings controlling on the facts of the present case under present law. The fact that the defendants were minors was apparent on the face of the pleadings from the commencement of the action, the plaintiff knew they were minors, the defendants, though of voting age, knew they were minors, and their counsel knew they were minors-yet through counsel they filed responsive pleadings admitting residency and jurisdiction and otherwise pleading to the merits of the petition. The court allowed State Farm Mutual Automobile Insurance Company (under plaintiff's uninsured motorist coverage) to intervene and file defensive pleadings, and on behalf of the defendants the intervenor moved for summary judgment on the ground that there was no genuine issue as to a material fact. After the trial court denied this motion, a jury was struck and the case proceeded to trial. At no stage of the above mentioned pleadings was the defense of minority raised in any manner. After verdict and judgment for plaintiff, defendants, through the intervenor insurance company, moved for judgment n.o.v. which was denied and later moved to set aside the judgment based on the fact that the defendants were minors. In other words, when the jury verdict and all rulings had gone against them, their ace in the hole was finally thrown on the table in a tactic commonly referred to as 'sand-bagging'. The trial court wisely and promptly viewed such motion as having no merit and denied it. A contrary ruling under the facts here would have been a travesty upon the courts and justice.

It seems clear that one of the intentions of the Civil Practice Act was to prevent just what happened in this case-going to trial and gambling on the verdict when a known defense to the suit is available. This is the purpose of Subsections 12(g) and (h)(1) of the Act requiring parties in pleadings and motions to plead defenses then known and available under penalty of waiver of the same.

It is also clear that Subsection 17(c) of the Act intended that the trial court be given discretion in the matter of appointment of a guardian ad litem for it provides that the court shall appoint or make such order as he deems proper for the protection of the minor. Under the situation prevailing in this case-defendants 18 or 19 years old, represented by competent counsel, the intervenor insurance company adequately represented, and all parties dealing at arm's length on the merits of the case-it would be discretionary and not mandatory on the court as to the appointment of a guardian ad litem. See McBerry v. Ivie, 116 Ga.App. 808, 812, 159 S.E.2d 108. This record is utterly void of a showing that the rights of the minor defendants were not fully protected or that by the formal appointment of a guardian ad litem a different result would have been reached by the jury or the court on any of its rulings.

It was said in Rutland, Administrator v. Sikes, D.C., 203 F.Supp. 276, 277, involving a substantially analogous situation, 'Everything was done for the minor defendant by his father and his able and experienced attorneys that could have been done if a guardian ad litem had been formally appointed.' We think the same could be said here in respect to representation by counsel. Most assuredly counsel was aware that no guardian ad litem had been appointed, and there is nothing to disclose that the defendants were in any...