Parham v. Roach

• Decision Date: 07 May 1974
• Docket Number: 3,No. 49077,Nos. 1,2,49077,s. 1
• Parties: Shirley A. D. PARHAM v. Junior ROACH
• Court: Georgia Court of Appeals

Page 686

206 S.E.2d 686

131 Ga.App. 728

Shirley A. D. PARHAM v. Junior ROACH.

No. 49077.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 7, 1974.

Cook, Pleger & Noell, J. Vincent Cook, Athens, for appellant.

Greer, Sartain & Carey, Jack M. Carey, Gainesville, Davis & Davidson, Jack S. Davidson, Jefferson, Reed & Dunn, Robert J. Reed, Gainesville, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Shirley Dyer brought suit against Junior Roach for personal injuries and damage to her automobile resulting from a collision with a runaway 1962 Chevrolet automobile which had been under Roach's possession and control. ¹ At the time in question Mrs. Dyer and her sister, Mrs. Hardy, were returning from Athens to Commerce on U.S. Highway 441 when the 1962 Chevrolet rolled unattended down Max Poole's driveway and onto the highway in the path of the Dyer automobile. Earlier in the day Roach had borrowed the automobile from James Powell to go hunting. Returning from his trip, he stopped at Max Poole's house to inspect several bird dogs. He drove to the top of Poole's driveway, described as approximately seventy feet long and very steep, and parked the car near the top on the steep part. He and Poole stood talking for some ten to fifteen minutes, then went back to Poole's barn to see the dogs, and as they were returning the collision occurred. Roach and Poole both estimated that the car had been parked in the driveway 30 to 45 minutes before the collision. Roach testified that he had put the car in park and engaged the handbrake; the investigating officer testified that Roach had stated at the scene that he had apparently failed to set the handbrake; Roach denied having told the officer this.

Plaintiff submitted the following request to charge: 'You are instructed that if you find from the evidence that the automobile under the custody and control of Junior Roach did in fact roll unattended down Max Poole's driveway and into the path of Mrs. Shirley Dyer causing the collision, then the law presumes that the defendant is negligent and places upon the defendant the burden of coming forward with evidence to overcome or at least balance the presumption of negligence. The mere testimony of the defendant that, in parking said automobile, he took all possible or reasonable precautions, does not necessarily overcome the presumption that the defendant, Junior Roach was negligent.' At the hearing on the requests, defendant objected on the basis that negligence could not be presumed; and the court refused to charge this written request, to which refusal plaintiff objected at the conclusion of the charge. Instead, the court charged defendant's request to charge, in part as follows: 'The mere collision of two vehicles does not raise a presumption of negligence on the part of a defendant, nor does it create a right of recovery by the plaintiff.' This request to charge was objected to by plaintiff at the hearing prior to the charge, and the objection was renewed at the conclusion of the charge.

There was a verdict for the defendant and plaintiff appeals, enumerating errors as to the exclusion of evidence, the denial of certain requests to charge, a failure to charge and in a portion of the charge given. Held:

1. Plaintiff offered a batch of some 53 personal checks signed by the decedent, Mrs. Dyer, made out to various parties, and several receipts to Mrs. Dyer from various parties. These were offered as a whole as proof of her 'expenses' from the time of the accident to the time of her death. Bills or invoices for the items covered by the checks and receipts were not offered, and the checks and receipts were excluded on objection timely made, and this ruling is enumerated as error.

Although Code Ann. § 38-706.1 provides that one who is a member of the family of the injured party, or who was responsible for the care of the patient is a competent witness to identify doctor bills, hospital bills, ambulance service bills, drug bills and similar bills for expenses incurred in the treatment of the patient upon a showing that the bills were received from a licensed practicing physician, hospital, ambulance service, drug store, etc., no such bills were identified or introduced and there was no proof that the payments made by the checks tendered were to licensed practicing physicians, hospitals, ambulances, drug stores, etc.

There was no identification of the items as required by the statute, nor was there the proof that all of the payments had been made for treatment of Mrs. Dyer for injuries which she may have received in the accident involved. Lester v. S. J. Alexander, Inc., 127 Ga.App. 470, 193 S.E.2d 860.

Moreover, even if we could find error in exclusion of these items, the verdict was for the defendant, finding against liability, and any error in the admission or exclusion of evidence relative to the injuries or damages, their extent, or expenses incurred in their treatment, was harmless and affords no ground for reversal. Stubbs v. Greyhound Lines, Inc., 116 Ga App. 58(2), 156 S.E.2d 474, and see cases collected in Maloy v. Dixon, 127 Ga.App. 151, 156, 193 S.E.2d 19, footnote 2.

2. Error is enumerated on a charge that 'the mere collision of two vehicles does not raise a presumption of negligence on the part of the defendant.' We can find no error in this charge. Obviously it is correct as an abstract statement of the law, for a mere collision between two vehicles may result from an accident for which no one is to blame, or it may result from the negligence of the operator of the other vehicle (not defendant's), or from some supervening cause. Cf. Cartey v. Smith, 105 Ga.App. 809, 125 S.E.2d 723.

3. The request to charge submitted by the plaintiff (see statement of facts above) is faulty in that it asserts that if the jury should 'find from the evidence that the automobile under the custody and control of Junior Roach did in fact roll unattended down Max Poole's driveway into the path of Mrs. shirley Dyer causing the collision, then the law presumes that the defendant is negligent . . .' (Emphasis supplied.)

The request to charge is based upon the rule of res ipsa loquitur, which was fully discussed in Chenall v. Palmer Brick Company, 117 Ga. 106, 43 S.E. 443, where a brick arch had fallen and injured the plaintiff. Pointing out that proof of negligence might be accomplished by direct evidence, or by circumstantial evidence, or by a combination of the two, it was asserted that 'The law raises no presumption whatever as to who was to blame. The burden is on the plaintiff to show that the defendant was negligent,' and 'There is in neither of these instances, however, any presumption of law, but evidence on which the jury may reason, and from which they may draw conclusions as to matters not directly proved. This inference is one of fact, and not of law. It is to be reached by the jury and not by the court.'

In Sinkovitz v. Peters Land Co., 5 Ga.App. 788, 794, 64 S.E. 93, 96, the owner of a building was sued for injuries occurring when a window pane fell and struck the plaintiff on a sidewalk below. Applying the doctrine from Chenall, it was held that "The maxim, Res ipsa loquitur, is simply a rule of evidence. The general rule is that negligence is never presumed from the mere fact of injury, yet the manner of the occurrence of the injury complained of, or the attendant circumstances, may sometimes well warrant an inference of negligence. It is sometimes said that it warrants a presumption of negligence; but the presumption referred to is not one of law, but of fact. It is, however, more correct and less confusing to refer to it as an inference, rather than a presumption, and not an inference which the law draws from the fact, but an inference which the jury are authorized to draw; and not an inference which the jury are compelled to draw . . . Under our system, where every question of negligence is left for determination by the jury, even in cases where the maxim under consideration is applicable, the judge should not charge the jury that there would be an inference of negligence from a given state of facts, but should instruct them in clear and unequivocable terms that negligence must be proved; and it is for them to consider whether the manner of the occurrence and the attendant circumstances are of such a character that they would, in their judgment and discretion, be authorized to draw an inference that the occurrence could not have taken place if due diligence on the part of the (defendant) had been exercised. And they should also be instructed that, while they are not required by the law to draw any inference of negligence from the matter, still it is within their province to determine whether the circumstances are such that an inference might be properly drawn. If, in a given case, the jury see proper to draw an inference of negligence from the manner of the occurrence or the attendant circumstances, the drawing of this inference is not necessarily to result in a finding in favor of the plaintiff. It imposes upon the jury the duty of making further inquiry as to whether this inference has been overcome by a satisfactory explanation. If the jury have drawn the inference of negligence, and there is evidence which satisfies their minds, notwithstanding such inference of negligence, that the occurrence was really brought about (by some other cause) the inference is overcome, and the jury should find in favor of the defendant." (Emphasis supplied.)

In Griffin v. Odum, 108 Ga.App. 572, 133 S.E.2d 910, it was contended that an automobile accident had occurred when the defendant had driven his vehicle across to the wrong side of the road and struck the plaintiff's vehicle. The court charged that 'If a collision takes place and a party is on the wrong side of the road, the presumption is generally against the party on the wrong side of the road. This applies to whichever of the...