Shapiro Packing Co. v. Landrum, 40390
| Decision Date | 02 April 1964 |
| Docket Number | No. 40390,3,Nos. 1,2,40390,s. 1 |
| Citation | 136 S.E.2d 446,109 Ga.App. 519 |
| Parties | SHAPIRO PACKING COMPANY et al. v. Christine C. LANDRUM et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The motion to dismiss the writ of error is overruled.
(a) Where several defendants are sued in one action and after trial they file separate motions for new trial, it is not necessary for more than one brief of the evidence to be filed.
(b) Deletions from the bill of exceptions made in the presence of opposing counsel prior to certification by the trial judge will not work a dismissal, absent any showing of fraud. The practice, however, is one that should be avoided so that there will be no appearance of irregularity when the bill of exceptions comes to this court.
2. The general demurrer to the petition was properly overruled.
3. The allegation--that, immediately after a collision and within three minutes thereof, a truck driver, one of the defendants in the case, stated that he was sorry the collision had occurred, that he was at fault, and that his employer (another defendant in the case) was covered by insurance and that the insurance company would make compensation to the plaintiff's husband for his injuries and damages--should have been stricken on special demurrer as an improper and harmful injection into the case of the immaterial and prejudicial fact that the defendant employer had liability insurance; the allegation does not show as a matter of law that the statement was a part of the res gestae, or that the probative value of the statement as to insurance outweighed its prejudicial effect.
4. The particulars of a husband's injuries may be alleged in his wife's suit for loss of consortium for the limited purpose of showing how they affected her right of consortium.
5. Where a master, having the control of or the right to control the operation of his vehicle by a servant, brings suit against the servant and a third party as joint tortfeasors to recover for injuries alleged to have been negligently inflicted upon him by them, the servant's negligence is not imputable to the master as between the master and the servant, but it is imputable to the master as between the master and the third party.
The facts of this case are the same as those in Hightower v. Landrum, Ga.App., 136 S.E.2d 425. Particular protions of the pleadings relevant will be more fully stated in the appropriate divisions of this opinion.
To a verdict and judgment against all defendants the defendants William Bryant and Shapiro Packing Company filed their motion for new trial. Defendant Hightower filed a separate motion and only he filed a brief of the evidence. To orders overruling their demurrers, general and special, and their motion for new trial, as amended, Bryant and Shapiro Packing Company except.
Harris, Chance, McCracken & Harrison, Fulcher, Fulcher, Hagler & Harper, E. D. Fulcher, Julian H. Stewart, Augusta, for plaintiff in error.
Kenneth Goolsby, Randall Evans, Jr., Thomson, for defendant in error.
1. Defendant in error has moved to dismiss the bill of exceptions upon two grounds, viz., (a) that plaintiffs in error had not filed a brief of the evidence, and (b) that several lines in the bill of exceptions were marked out with ink without any explanation therefor. The motion is denied on both grounds.
Specified as a part of the record in this bill of exceptions is the brief of the evidence filed by Hightower, a codefendant in the trial court, in connection with his motion for new trail and which the trial judge certified to be a true and correct brief of the evidence adduced upon a trial of the case. The judge's certificate shows on its face that all three--Shapiro Packing Company, Bryant and Hightower--were parties defendant in the case. Where several defendants are sued in the same action and after verdict they file separate motions for new trial, it is not necessary for more than one brief of the evidence to be filed since there is but one true and correct brief of the evidence and any additional ones would be merely duplicates, serving only to encumber the record. Moreover, the motion would not be good even if there were no brief of the evidence, since the absence of a brief of evidence in connection with a motion for new trial is not a ground for dismissal of the writ of error.
It appears that the words deleted from the bill of exceptions related only to the matter of the filing of one brief of evidence, rather than two. There is no allegation of fraud. On the contrary, there is certification by counsel for plaintiffs in error, and counsel for defendant in error conceded in his oral argument before this court, that the alterations were made in the presence of opposing counsel prior to the certification by the trial judge. Under these circumstances the alterations will not work a dismissal.
2. The petition stated a cause of action against all defendants. Hence, it was proper to overrule the general demurrer. It may be observed here that although upon the trial it developed that the defendant Hightower was a servant of Jake Landrum, plaintiff's hasband, under his control and direction at the time he operated the Landrum truck and that his negligence was imputable to Landrum, the master, so that a verdict in favor of neither Landrum for his injuries nor in favor of his wife for loss of consortium on account of those injuries could be lawfully returned against Hightower, those facts do not appear in the petition.
3. The first special demurrer attacks particularly that portion of the alleged statement of defendant Bryant to the effect that his employer was covered by insurance and that the insurance company would make compensation to plaintiff (plaintiff's husband?) for his injuries and damages.
The generally accepted rule is that the fact that a defendant is insured or otherwise indemnified against loss in the event of a recovery against him can not be shown as an independent fact by a plaintiff. McRee v. Atlanta Paper Co., 84 Ga.App. 181, 183, 65 S.E.2d 832, 833, where the requiring of the plaintiff to purge his petition of the improper and prejudicial matter was upheld. The few cases in which this kind of evidence has been held admissible are distinguishable on their facts. In Sims v. Martin, 33 Ga.App. 486, 126 S.E. 872, for example, the statement as to having insurance was made by the insured, rather than an employee of the insured, as in the instant case. While it is true that '[t]he admissions by an agent or attorney in fact, during the existence and in pursuance of his agency, shall be admissible against the principal,' Code § 38-406, the present admission goes beyond a mere admission of fault and includes the statement that the principal has insurance. Even if this should not amount to hearsay evidence, it is inadmissible for the reason that the defendant driver had no authority to implicate and prejudice his employer by these harmful statements. The statement in the Sims case was held to be admissible for the additional reason that it was a part of the...
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