Reeves v. Morgan

• Decision Date: 13 March 1970
• Docket Number: No. 1,No. 44689,44689,1
• Citation: 121 Ga.App. 481,174 S.E.2d 460
• Parties: Ella REEVES v. W. D. MORGAN et al
• Court: Georgia Court of Appeals

Page 460

174 S.E.2d 460

121 Ga.App. 481

Ella REEVES v. W. D. MORGAN et al.

No. 44689.

Court of Appeals of Georgia, Division No. 1.

March 13, 1970.

Rehearing Denied March 26, 1970.

Certiorari Granted May 8, 1970.

Bryan, Carter, Ansley & Smith, M. D. McLendon, William S. Rhodes, Atlanta, for appellant.

Gambrell, Russell, Moye & Killorin, Edward W. Killorin, Sewell K. Loggins, Atlanta, for appellees.

Syllabus Opinion by the Court

PANNELL, Judge.

1. (a) Ordinances of counties and cities are not cognizable by the courts of this State by judicial notice, but such ordinances are treated as private statutes and must be alleged and proved as matters of fact. Sweet v. Awtry, 70 Ga.App. 334(11), 28 S.E.2d 154; Lewenstein v. Curry, 75 Ga.App. 22(1), 42 S.E.2d 158; Mayson v. City of Atlanta, 77 Ga. 662(5); McDonald v. Lane, 80 Ga. 497, 5 S.E. 628; Taylor v. City of Sandersville, 118 Ga. 63, 44 S.E. 845; Savannah, Florida, etc., R. Co. v. Evans, 121 Ga. 391(3), 49 S.E. 308; Hill v. City of Atlanta, 125 Ga. 697(2), 54 S.E. 354, 5 Ann.Cas. 614; Leger v. Ken Edwards Enterprises, 223 Ga. 536, 539, 156 S.E.2d 651.

(b) Before a municipal ordinance is admissible in evidence, it must be pleaded and proved as a matter of fact. It was error for the court, over the objection of the plaintiff, to admit in evidence a city ordinance which had not been pleaded by the defendant in its answer. Id.

(c) There is nothing in the Civil Practice Act which changes the rule above set forth. While the ordinance here was offered and admitted for the purpose of proving that the plaintiff was guilty of contributory negligence because of the violation thereof, and no pleadings are required under the Act in order to assert such defense, neither, was pleading of such defense required prior to the Civil Practice Act. Both before and after the Act, no pleading of this defense was required, as this defense could be shown under the denials of the answer. The doctrine of judicial notice is a rule of evidence (Zell v. American Seating Co., 2 Cir., 138 F.2d 641, 643, n. 6) and upon application of the Federal civil practice rules, which we have substantially adopted in the Georgia Civil Practice Act, in the absence of judicial notice, '(t)he foreign law should be pleaded, and the pleader should give not only the substance of that law but also appropriate citations of the applicable statutes and one or more citations of decisional law, if there be any' (Telesphore Couture v. Watkins, 162 F.Supp. 727, 730; Bernstein v. N.V. Nederlandsche-Amerikaansche, Stoomvaart-Maatschappij, D.C.S.D.N.Y.1951, 11 F.R.D. 48, 49)), and, '(u)nless foreign law is expressly pleaded 'the case must be decided according to the law of the federal courts as a question of general commercial law" (F.A.R. Liquidating Corp. v. Brownell, D.C., 130 F.Supp. 691, 695; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 444, 9 S.Ct. 469, 473, 32 L.Ed. 788); and, even when considered as a rule of pleading under the Federal Rules of Civil Procedure, this requirement is not altered by those rules. See Empresa Agricola Chicama Ltda. v. Amtorg Trading Corp., D.C., 57 F.Supp. 649, 650, where it said: 'Unquestionably, by virtue of Rule 43(a), F.R.C.P., the more liberal rule for the reception of evidence relating to foreign law, now operative in the New York state courts, has become applicable in the federal courts located in New York. But no such submission to State rules of pleading as distinguished from evidence, obtains in the federal courts under the Federal Rules of Civil Procedure. With respect to the requirements of a federal pleading, subdivision D of Section 344-a of the New York Civil Practice Act is, therefore, not controlling. The federal rule of pleadings is well established. Foreign law is matter of fact which must be pleaded and proved. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 1889, 129 U.S. 397, 445, 9 S.Ct. 469, 32 L.Ed. 788; Rowan v. Commissioner of Internal Revenue, 5 Cir., 1941, 120 F.2d 515. Although Section 344-a has changed the character of proof admissible in this district court to prove foreign law, it has not dispensed with the necessity of pleading the foreign law, if it is to be proved.'

By analogy to prior Federal cases construing the Federal rules of civil procedure as to the pleading and proof of foreign laws, we have shown that the Georgia Civil Practice Act, patterned after the Federal Act, did not effect any change in the theory of pleading ordinances as a prerequisite to their admission into evidence merely because the Georgia Civil Practice Act simplified the matter of pleading. However, by so doing, we do not mean to hold that the requirement as to pleading foreign laws either under the Federal rules or under the laws of this State, has not been changed by the amendment to the Federal rules (Rule 44.1) and a subsequent amendment to our rules by Section 10 of the Act of 1968 (Ga.L.1968, pp. 1104, 1108) adding a subsection (c) to Section 43 of the Civil Practice Act as follows: 'A party who intends to raise an issue concerning the law of another state or of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence. The court's determination shall be treated as a ruling on a question of law.'

While the legislature of this State modified the requirements as to pleading foreign laws as to prerequisite to admission in evidence, it made no change in the requirements as to pleading city ordinances of this State. The legislature, not having seen fit to make the change in reference to city ordinances, this court can not ligislate such a change.

2. A police officer testified that he had had three years experience in investigation of automobile accidents and had been trained in connection with this work and after testifying to the physical facts and indications of skid marks and tire marks at the scene of an accident, was asked by the defendant's attorney on cross-examination: 'Did you find any evidence of any speed on the part of the Morgan automobile?' And answered: 'My opinion upon investigation there was no speed indication according to the skid marks.' There was no error on the part of the trial judge in overruling an objection to such testimony which stated as the grounds therefor (a) that the witness was not qualified as an expert and (b) that the opinion failed to prove that the automobile was not exceeding the speed limit. 'The question whether a witness is qualified to give his opinion as an expert upon the subject under investigation is one for the court, and not for the witness. The mere fact that the witness in his testimony may disclaim to be an expert is no reason for refusing to allow him to testify as one. Glover v. State, 129 Ga. 717, 724, 59 S.E. 816. The discretion of the trial court in determining the question of the witness' qualification to give an opinion will not be disturbed unless it is manifestly abused. Carroll v. Hayes, 98 Ga.App. 450, 452, 105 S.E.2d 755.' Thornton v. Gailard, 111 Ga.App. 371(2), 141 S.E.2d 771. Immediately after answering the question objected to, the witness testified as to the speed limit at that particular location. That the answer to the question here might not have been proof of what the questioner desired does not make the answer objectionable by the other party. Further, it was for the jury to interpret what the witness meant by the phrase 'no speed indication' in his answer.

3. Where a party is examining a witness called by the party and the trial judge sustains an objection and refuses to permit the witness to answer a question asked and error is enumerated on such ruling on appeal, it must appear that a pertinent question was asked, that the court refused to allow the answer, that the statement was made to the court at the time, showing what answer was expected and that such testimony was material and would have benefited the complaining party (Allen v. Kessler, 120 Ga. 319, 47 S.E. 900; Griffin v. Henderson, 117 Ga. 382(2), 43 S.E. 712; Ward v. Johnson, 23 Ga.App. 479, (3), 98 S.E. 405; Campbell v. Dysard Const. Co., 40 Ga.App. 328(2), 149 S.E. 713). The record in the present case not disclosing that any statement was made to the trial judge as to what the witness was expected to testify to when objection was made to a question asked, we can not say that there was any harmful error in the action of the trial judge in sustaining the objection.

4. A witness for the plaintiff, who had been examined in chief and cross-examined by the defendant, was permitted to leave the stand, and the trial court, over the objection of the plaintiff, permitted the defendant to recall the witness for the purpose of further cross-examination as to a matter which had been overlooked in the prior cross-examination of the witness. The conduct of the trial in this respect lies within the discretion of the trial judge, and in the absence of a showing of an abuse of the discretion, his actions must be affirmed. See in this...