Shipman v. Johnson, 34985

• Decision Date: 09 February 1954
• Docket Number: No. 34985,No. 2,34985,2
• Citation: 80 S.E.2d 717,89 Ga.App. 620
• Parties: SHIPMAN v. JOHNSON
• Court: Georgia Court of Appeals

Page 717

80 S.E.2d 717

89 Ga.App. 620

SHIPMAN v. JOHNSON.

No. 34985.

Court of Appeals of Georgia, Division No. 2.

Feb. 9, 1954.

Syllabus by the Court

1. Stockholders of a liability-insurance company which carries insurance on the automobile of a defendant in a damage suit, and is under its contract obligated to indemnify him for the amount of a judgment rendered against him in such suit, being disqualified as jurors by reason of their interest in the result of the litigation--it follows that where, by reason of the privity between a husband who carries such insurance and his wife who was the driver of the automobile at the time of the collision, an action by the wife against a third party would necessarily result in an adjudication of the rights and liabilities of the husband, even though he is not a party of record in such suit, and where such judgment might be pleaded as res judicata in any action between such husband and the third party, stockholders of the husband's insurer are interested in the result of the litigation, and are bound thereby, to the same extent and in the same manner as though the husband were in fact a party of record. Under such circumstances, it is the duty of the trial court, on motion of a party, to purge the jury as to the stockholders of such insurance company.

2. (a) Ordinances of the City of Atlanta, authorizing the City Traffic Engineer to determine and designate intersections where particular hazard exists and cause stop signs and traffic-control signs to be erected where needed, are not too vague and indefinite to be enforceable, nor are they violative of certain constitutional provisions, as contended.

(b) Where special demurrers and directed against a petition pleading certain ordinances of the City of Atlanta, the demurrers are overruled, and that judgment is affirmed by this court, it is too late, on the trial of the case, to object to the introduction of certified copies of such ordinances in evidence upon grounds which were or might have been raised by such special demurrers.

(c) Disregard of traffic-control signs, even though erected without proper authority of law, may pose a jury question as to common-law negligence.

Lillian F. Johnson filed a suit for damages against W. H. Shipman (plaintiff in error here), for injuries resulting from an intersection collision between her husband's automobile, which she was driving, and that of the defendant. On its first appearance before this court, Shipman v. Johnson, 87 Ga.App. 538, 74 S.E.2d 557, it was held that the petition was not subject to the demurrers interposed. Thereafter the plaintiff again amended, and exceptions pendente lite were preserved by the defendant to the overruling of his objections to the amendment. A trial resulted in a verdict for the plaintiff. The defendant filed his motion for a new trial on the general grounds, which was later amended by adding 15 special grounds, and the denial of this motion is assigned as error.

Ground 12 of the amended motion for new trial assigns error on the refusal of the trial court, on motion made outside the presence of the jury when the case was called for trial, to purge the jury as to stockholders or others connected with State Farm Insurance Companies, which carried liability insurance on the automobile owned by William H. Johnson, husband of the plaintiff, which automobile she was driving at the time of the collision. In this special ground counsel for the defendant contends that the insurer of the automobile which the plaintiff was driving at the time of the collision is interested in the result of this litigation for reasons substantially as follows: 1. The defendant had pending at the time of the trial of this case an action against William H. Johnson, the owner of the automobile which collided with the automobile of the defendant, and against his wife, the plaintiff here, jointly; 2. He could not bring this action as a cross action in the present case for the reason that Lillian F. Johnson is the sole plaintiff, and William Johnson, her husband, is not a party to this action. 3. A verdict in favor of the plaintiff in this action would constitute a bar to the defendant's action against this plaintiff. 4. Since the insurer of the Johnson automobile would be liable to respond in any damages recovered by this defendant against the plaintiff and her husband, within the terms of the policy of insurance carried on the Johnson automobile, such insurer would be bound by a verdict in favor of this plaintiff against this defendant. 5. For these reasons the insurer is interested in the result of the litigation, and this entitled the defendant to have the jury purged of all persons who are stockholders of this insurance company.

In support of this ground of the amended motion for new trial, there is appended thereto a plea of estoppel by judgment, which apparently came into existence subsequently to the motion of counsel for the defendant (who is the plaintiff in error here) to purge, and subsequently to the verdict, but prior to the preparation of the amendment to the motion for new trial. This plea, filed by counsel for Shipman in his action against the Johnsons, sets forth facts which would show an interest in the insurer, as contended in this ground of the amended motion for new trial.

G. Seals Aiken, Atlanta, for plaintiff in error.

Hudson & LeCraw, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. Code, § 59-716 provides in part as follows: 'All trial jurors in the courts of this State shall be disqualified to act or serve, in any case or matter, when such juror is related by consanguinity or affinity to any party interested in the result of the case or matter'. Code, § 59-704 provides in part: 'In civil cases * * * in the superior court, each party may demand a full panel of 24 competent and impartial jurors from which to strike a jury * * *.'

It is well settled that stockholders of an insurance company which carries liability insurance indemnifying a party to an action from a judgment against it in that case are 'interested in the result of the case' and not qualified to serve as jurors, and that to conceal such disqualification would 'abridge the right of a plaintiff to pursue the lawful procedure in the selection of a jury'; and that this is true whether actual injury resulted or not. Atlanta Coach Co. v. Cobb, 178 Ga. 544(2), 174 S.E. 131, 134. See also Rogers v. McKinley, 52 Ga.App. 161, 182 S.E. 805; Reynolds v. Satterfield, 86 Ga.App. 816, 72 S.E.2d 811. Here, the situation is different, in that the insured is not a party to this action. The case is materially different also from Lewis v. Williams, 78 Ga.App. 494, 51 S.E.2d 532, in which the jury was sought to be qualified as to employees and stockholders of Georgia Power Company (not a party to the suit, but contended by one of the parties to have been, through its agent, the sole proximate cause of the collision), in that a verdict in that case for the defendant would not have adjudicated any rights or liabilities of Georgia Power Company. Similarly, in Central Georgia Power Co. v. Nolen, 143 Ga. 776(2), 779, 85 S.E. 945, 946, where several similar actions based on the creation or maintenance of a nuisance were filed by different plaintiffs against the same defendant, and the objection was to relatives of plaintiffs in other suits serving on the jury in the case on trial--the court held: 'Relatives of parties to a case within the prohibited degree are disqualified to sit as jurors therein. But the mere fact that the principles decided in one case may, in some collateral way, be beneficial to a party in another case, or that evidence similar to that in the first case might be introduced in the later case * * * does not disqualify the kindred of the...