Newton Bros., Inc. v. Shank
| Decision Date | 05 January 1978 |
| Docket Number | No. 32815,32815 |
| Citation | 241 S.E.2d 231,240 Ga. 471 |
| Parties | NEWTON BROTHERS, INC. v. R. H. SHANK. |
| Court | Georgia Supreme Court |
Cook, Noell, Bates & Warnes, John S. Noell, Jr., Athens, for appellant.
Guy B. Scott, Jr., Athens, Wilbur A. Orr, Washington, for appellee.
We granted certiorari to consider whether testimony of compromise offers was admissible solely to rebut a counterclaim for abuse of civil process based upon allegations of bad faith.
In 1964, Shank acquired a filling station and wholesale (fuel) distributing agency with Sinclair. This acquisition included a bulk plant serving Wilkes and Lincoln counties and part of Oglethorpe County. In 1973, Newton Brothers, Inc., purchased Sinclair's (Amdel, Inc.) assets in Wilkes and Lincoln counties. It is undisputed they then purchased two trucks from Shank and paid for them. Shank alleged Newton Brothers also bought 80 fuel storage tanks from him which was denied and Shank sued. Newton Brothers counterclaimed for abuse and misuse of civil process alleging bad faith. At trial, Shank was permitted over objection to admit evidence of offers by Newton Brothers to compromise the dispute. The trial judge admitted this evidence for the sole purpose of refuting the "contention" Shank was acting in bad faith, and the jury was instructed to consider the testimony only for that purpose and not as an admission of liability. The Court of Appeals affirmed, holding in Division 1 of its opinion Newton Bros., Inc. v. Shank, 143 Ga.App. 21, 237 S.E.2d 412 (1977), the trial court did not err where such evidence was admitted only as rebuttal of appellant's counterclaim and instruction given. We reverse.
"(A)dmissions or propositions made with a view to a compromise, are not proper evidence." Code Ann. § 38-408; Emery v. The Atlanta Real Estate Exchange, 88 Ga. 321, 331(3), 14 S.E. 556 (1891) and cases cited. "The rule against allowing evidence of compromise is founded upon recognition of the fact that such testimony is inherently harmful, for the jury will draw conclusions therefrom in spite of anything said by the parties at the time of discussing the compromise, and in spite of anything which may be said by the judge in instructing them as to the weight to be given such evidence." Georgia Railway & Electric Co. v. Wallace & Co., 122 Ga. 547, 551, 50 S.E. 478, 480 (1905).
Newton Brothers denied liability, claiming no contract existed to purchase appellee's interest in the fuel...
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Bullock v. Bullock
...Prater v. State, 148 Ga.App. 831(2), 253 S.E.2d 223, supra. The Boyd case is inapposite to this case as is Newton Brothers, Inc. v. Shank, 240 Ga. 471, 241 S.E.2d 231 (1978), relied on by the Motions for a mistrial are largely in the discretion of the trial judge and will not be disturbed u......
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Elrod v. Elrod
...however, as they clearly were made with a view to compromising Appellant's questionable claim. OCGA § 24-3-37; Newton Bros. v. Shank, 240 Ga. 471, 241 S.E.2d 231 (1978). 4. Appellant urges that the trial court's disposition of certain of his pre-trial motions denied him due process and a fa......
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Cawthon Motor Co. v. Scheufler
...that issue because mere refusal to pay or settle a disputed claim is not bad faith (Lovell, supra; see also Newton Bros. v. Shank, 240 Ga. 471, 472, 241 S.E.2d 231; and Pacific Nat. Fire, supra) or stubborn litigiousness. Schafer Baking Co. v. Greenberg, 51 Ga.App. 324, 326, 180 S.E. 499. T......
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Stanley v. State
...view, the harm to appellant was irreparable and a mistrial should have been granted. This court in the case of Newton Bros., Inc. v. Shank, 240 Ga. 471, 472, 241 S.E.2d 231 (1978), commented as follows concerning the effect of an attempted curative instruction following the admission of pre......