Smith v. Davis
| Decision Date | 07 April 1970 |
| Docket Number | No. 2,No. 45002,45002,2 |
| Citation | 121 Ga.App. 704,175 S.E.2d 28 |
| Parties | Anthony L. SMITH v. Larry W. DAVIS |
| Court | Georgia Court of Appeals |
Syllabus by the Court
No harmful error appears for any reason argued and insisted upon.
The plaintiff Davis and defendant Smith in the trial court were roommates living and working in Jacksonville, Florida. On Saturday morning, June 15, 1968, Smith went to the beach near Jacksonville and stayed for sometime in this area. Later in the day the parties went to Daytona Beach in Smith's car, where they met a mutual friend. Early Sunday morning at about 1:30 a.m. they decided to return to Jacksonville. Davis went to sleep in the back seat and the mutual friend riding in the right front seat also went to sleep. At approximately 3:00 a.m. and while some 5 miles south of Jacksonville, Smith fell asleep whereby the vehicle left the road causing injuries to Davis from which he eventually become blind.
Davis alleges in his complaint that Smith was grossly negligent in driving his automobile at a time when he was drowsy, exhausted and sleepy from not having slept for some 20 hours. The defendant testified that he had been sleepy for at least 3 or 4 miles before the occurrence, that he had bobbled his head 2 or 3 times from being sleepy but that he thought he could make it to Jacksonville.
The jury found for the plaintiff and the defendant appeals from the order overruling his motion for judgment n.o.v., or in the alternative, a new trial.
W. G. Elliott, Valdosta, for appellant.
Arthur C. Farrar, Douglas, for appellee.
1. The trial court did not err in overruling appellant's motion not to qualify the jury with respect to a particular insurance company where it appears that the company was the plaintiff's insurer, but had denied coverage under the uninsured motorist provisions of the policy, it further appearing that an agent of the company in Ware County was served with the suit and by agreement with the defendant was paying for his counsel to defend the action on its merit. Obviously the insurance company had a potential financial interest in the outcome of the litigation, either to moot any issue of its liability, if any, or to reduce the amount of potential liability below the maximum coverage, if there was any coverage. See Weatherbee v. Hutcheson, 114 Ga.App. 761(1), 152 S.E.2d 715.
2. In enumerating error on the refusal to grant a continuance the defendant insists upon two grounds asserted in the lower court, that of requiring the defendant to go to trial without the benefit of two discovery depositions taken by agreement of counsel, but not yet received by the court, and that of requiring the defendant to go to trial without the benefit of a pre-trial order, despite the mandate of the statute.
'All applications for continuances are addressed to the sound legal discretion of the court, and if not expressly provided for, shall be granted or refused as the ends of justice may require.' Code § 81-1419. On numerous occasions the appellate courts have ruled that the discretion vested in the trial court in this respect will not be disturbed unless manifestly, flagrantly, or clearly abused.
'That a commission issued to examine a witness has not been returned shall be no cause for a continuance, unless the party seeking the continuance shall make the same oath of the materiality of the testimony as in the case of an absent witness; and the party shall show due diligence in suing out and having the same executed.' Code § 81-1417. In the case of an absent witness the movant must show, among other things, that the testimony is material, and the facts expected to be proved by the absent witness. Ga.L.1959, p. 342; Code Ann. § 81-1410. 'In all cases, the party making an application for a continuance must show that he has used due diligence.' Code § 81-1416. The showing made with respect to the two discovery depositions falls far short of meeting the above statutory requirements.
The Georgia pre-trial rule (CPA § 16; Ga.L.1968, pp. 1104, 1106; Code Ann. § 81A-116) differs from the Federal rule (Rule 16, see Book 23A Ga. Code Ann., p. 168) in that, among other things, pretrial procedures are mandatory in Georgia if sought by a party or the court, but both rules make the pre-trial order itself mandatory, i.e., '(t)he court shall make an order,' etc. In State Highway Department v. Peters, 121 Ga.App. 167, 173 S.E.2d 253, this court recognized that it is error for the trial court to ignore the mandate of the statutory rule in Georgia, but determined, upon a review of the entire record that no basis existed in that case for a determination of harmful, and therefore reversible, error.
If trial courts choose to ignore the mandate, however, the rule becomes meaningless, and the fact that the parties failed to reach any agreements, which the trial court stated for the record as the reason for failing to make a pre-trial order, affords no legal justification to ignore the mandate. It is the duty of the court, to the extent practicable and possible, to separate the wheat from the chaff; to eliminate uncontroversial issues and formulate the remaining issues to show the real contentions of the parties.
Nevertheless, recognizing the discretion vested in the trial court with respect to a continuance in situations 'not expressly provided for,' appellate courts are reluctant to interfere with the exercise of this discretion unless manifestly, flagrantly, or clearly abused. Appellant here relies solely on the mandate of the statute that the court 'shall make' a pre-trial order and makes no showing that such failure was harmful or adverse to the defendant on any issue.
Accordingly, we conclude that no harmful error appears in respect to the refusal of the trial court to grant a continuance, for any reason argued and insisted upon.
3. In support of the asserted error in recognizing the Southern Reporter as proof of Florida law the defendant limits his brief to a citation of the 1949 decision of Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917. In that case the Supreme Court stated (p. 236, 56 S.E.2d p. 919) that the Pacific Reporter 'was not shown to be such a publication as is 'published by authority,' so as to authorize the trial court to take judicial cognizance thereof' under Code § 38-112.
In 1968 the legislature added § 43(c) to the Civil Practice Act, as follows: Ga.L.1968, pp. 1104, 1108; Code Ann. § 81A-143(c).
We think § 43(c) of the Civil Practice Act as amended, supra, supersedes the holding in Carter v. Graves, supra, as a controlling precedent to preclude the use of the Southern Reporter as a relevant source of Florida law, if the trial court so decides, irrespective of whether the Florida cases as therein reported are or are not 'published by authority.' Accordingly, under the circumstances here disclosed the trial court was authorized to consider the reports of Florida cases appearing in the Southern Reporter as a relevant source of Florida law to determine the substantive law applicable to the issue of liability.
4. The contention that the opinion of a physician that the plaintiff is permanently blind is based on hearsay facts obtained from other physicians, and therefore inadmissible, is not supported by the transcript. While the physician did receive information about the injuries from other examining physicians, and even if it be conceded that his opinion of permanent blindness, if based on hearsay, should not be heard (see Code § 38-1710), the physician in his testimony ultimately made it clear that his opinion that the plaintiff was permanently blind was an independent conclusion based on his own examination. See Seaboard Air-Line Railway v. Maddox, 131 Ga. 799, 801, 63 S.E. 344.
5. Error is asserted on the overruling of defendant's objection to the plaintiff's evidence as to medical bills, based on the argument that 'it must be shown (1) that medical bills are reasonable, and (2) that the medical services as rendered were necessary' in treatment of the injury on which the action is based.
From an examination of the transcript it appears that the objection for the above stated reasons was directed to three exhibits only, two checks which the plaintiff signed for a total of $750 in payment of medical expenses, and another check for $500 signed by the plaintiff's father. While there is no direct testimony in the cited portion of the transcript or elsewhere that these payments were for reasonable and necessary expenses, the transcript includes testimony concerning the serious nature of the...
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