Smith v. Laney

• Decision Date: 05 March 2021
• Docket Number: A20A1736
• Citation: Smith v. Laney, 358 Ga.App. 754, 856 S.E.2d 355 (Ga. App. 2021)
• Parties: SMITH v. LANEY et al.
• Court: Georgia Court of Appeals

358 Ga.App. 754

856 S.E.2d 355

SMITH

v.LANEY et al.

A20A1736

Court of Appeals of Georgia.

March 5, 2021

Charles Madden Cork II, Michael Rene Braun, Marietta, for Appellant.

Calanit A. Hayes, William Allan Myers, Gainesville, Rakhi Dalal McNeill, Atlanta, Jason Shawn Stewart, for Appellee.

Miller, Presiding Judge.

This case stems from a motor vehicle collision in Dothan, Alabama, between Eugene Smith, Ray Laney, Ariella Weekes,¹ and an unnamed John Doe defendant. Smith, the plaintiff in this negligence action, seeks review after a jury returned a verdict in favor of all the defendants. Smith contends that the trial court erred in allowing Laney and his employer, Laney Transportation, to be treated as separate entities at trial because the Laney defendants did not have distinct interests that allowed them to be treated as separate entities for the purpose of examining witnesses, and the Laney defendants did not have distinct interests for any other trial purpose such as opening and closing arguments. We conclude that the trial court did not abuse its discretion when it allowed the Laney defendants to conduct separate cross-examinations or when it allowed the Laney defendants to conduct voir dire separately or present separate opening and closing arguments. We therefore affirm the jury's verdict.

"Once a jury has returned a verdict and it has been approved by the trial court, we will affirm the verdict if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. In addition, we construe the evidence in the light most favorable to the verdict." (Citations omitted.) Cameron v. Peterson , 264 Ga. App. 1, 589 S.E.2d 834 (2003).

So viewed, the evidence shows that on January 26, 2017, Smith was driving a motorcycle northbound on South Oates Street in Dothan, Alabama. While driving on that road, Weekes and Laney, who were driving in front of Smith, suddenly stopped to avoid another vehicle, which caused Smith to hit the back of Laney's car. Smith was thrown from his motorcycle and suffered serious injuries.

Smith sued Laney, Weekes, and a John Doe defendant for the damages resulting from their negligence. Smith later added Laney Transportation, Laney's employer, as a party defendant, alleging that Laney operated his vehicle within the scope of his employment with Laney Transportation and that Laney Transportation was therefore liable under the theory of respondeat superior. Before trial, Smith moved for Laney and Laney Transportation to be treated as one party for the purposes of making opening and closing arguments and for questioning witnesses, but the trial court denied the motion. At trial, Laney Transportation admitted that it was not challenging whether Laney was operating the vehicle within the scope of his employment, and it argued to the jury that its liability "boil[ed] down to" whether or not Laney acted unreasonably under the circumstances. The verdict form placed both Laney and Laney Transportation on the same line and did not give the jury the ability to separately apportion fault or liability between Laney and Laney Transportation. Smith renewed his objection to the trial court's decision to allow the Laney Defendants to proceed separately, which the trial court overruled.

The jury found in favor of all the defendants. Smith filed a motion for new trial, contending that the trial court erred in allowing Laney and Laney Transportation to be treated separately for trial purposes. The court denied the motion, and this appeal followed.

1. In his sole enumeration of error, Smith argues for various reasons that the trial court erred in treating Laney and Laney Transportation as separate entities for the purpose of trial. We disagree.

(a) Smith first argues that the trial court's order violated his due process rights because he was denied a fair trial since the Laney Defendants had a "two-to-one advantage" over him. Smith, however, never raised a due process claim before the trial court nor argued below that his due process rights would be violated by allowing the Laney Defendants to proceed separately. A party may not "on appeal raise questions or issues neither raised nor ruled upon by the trial court." (Citation omitted.) Shelley v. Town of Tyrone , 302 Ga. 297, 308 (3), 806 S.E.2d 535 (2017). See also Hyde v. State , 291 Ga. App. 662, 664 (2), 662 S.E.2d 764 (2008) ("The rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching or shifting [arguments].") (citation and punctuation omitted). We therefore do not address Smith's due process claim.

(b) Smith next argues that the Laney Defendants should not have been treated as separate entities for the purposes of examination of witnesses because they did not have differing interests as required under OCGA § 24-6-611 (b). Upon a close reading of that statute and our relevant case law, we determine that the trial court did not abuse its discretion in allowing both Laney and Laney Transportation to cross-examine witnesses and that, even if it did, any error was harmless.

"[T]his court will not interfere with the action of the trial judge in allowing ‘double’ or ‘multiple’ cross-examination of witnesses, particularly in a situation, such as here shown, involving more than two parties, absent a showing of a manifest abuse of discretion." (Citation omitted.) Kilpatrick v. Foster , 185 Ga. App. 453, 458 (7), 364 S.E.2d 588 (1987). Additionally,

[w]hen we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its "plain and ordinary meaning," we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citation omitted.) Med. Center of Central Ga., Inc. v. Hosp. Auth. of Monroe County , 340 Ga. App. 499, 504 (3), 798 S.E.2d 42 (2017). "Moreover, particular words of statutes are not interpreted in isolation; instead, courts must construe a statute to give sensible and intelligent effect to all of its provisions, and must consider the statute in relation to other statutes of which it is part." (Citation and punctuation omitted.) Eagle West, LLC v. Ga. Dept. of Transp. , 312 Ga. App. 882, 888, 720 S.E.2d 317 (2011).

Smith's argument relies on OCGA § 24-6-611 (b), which provides that

[a] witness may be cross-examined on any matter relevant to any issue in the proceeding. The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against the party. If several parties to the same proceeding have distinct interests, each party may exercise the right to cross-examination.

Smith argues that, because Laney and Laney Transportation do not have distinct interests, they did not have the right to pursue separate cross-examination as to any of the witnesses called at trial.

Our caselaw interpreting this statute, however, does not support Smith's reading. Instead, we have consistently read the third sentence of the statute merely as a clarification of what it means for a witness to be "called against the party"—namely for that witness to be called by a party with "distinct interests"—such that a party could cross-examine that witness. See Lavender v. Wilkins , 237 Ga. 510, 515-517 (4), 228 S.E.2d 888 (1976) (testator's common law wife and nephews had distinct interests such that they could cross-examine each other); Crumbley v. Wyant , 188 Ga. App. 227, 228 (1), 372 S.E.2d 497 (1988) (hospital and doctor had distinct interests that allowed each party to cross-examine each other's witnesses despite relying on the common defense that the decedent's cause of death was not attributable to the doctor); Thomas v. Newnan Hosp. , 185 Ga. App. 764, 768 (3), 365 S.E.2d 859 (1988) (hospital and doctor had distinct interests that allowed each party to cross-examine each other's witnesses when joint and several liability had been alleged and litigated) (physical precedent only); Smith v. Poteet , 127 Ga. App. 735, 739-740 (3), 195 S.E.2d 213 (1972) (co-defendants in a negligence action had distinct interests such that one co-defendant was permitted to cross-examine the agent of another co-defendant); Gunnells v. Cotton States Mut. Ins. Co. , 117 Ga. App. 123, 126 (5), 159 S.E.2d 730 (1968) (trial court did not abuse its discretion in permitting attorneys for various parties to cross-examine witnesses for other parties when "the absence of any distinct interests" did not "clearly appear[ ]").² Indeed, we have held that "[t]he clear intent of [ OCGA § 24-6-611 (b) ] is to recognize and allow the right of cross-examination for witnesses called by other parties, and we consider it quite proper for the trial court to regard such witnesses as witnesses ‘called against’ another party seeking cross-examination, unless the absence of any ‘distinct interests’ clearly appears. " (Citation omitted and emphasis supplied.) Crumbley , supra, 188 Ga. App. at 228 (1), 372 S.E.2d 497. Smith has not cited a case wherein we have read this statute to prohibit two or more parties with identical interests from cross-examining the same witness, and we have found none.³

Furthermore, considering the evidence presented at trial, we cannot conclude that the trial court's decision harmed Smith. The cross-examination by Laney Transportation's counsel of Smith and Smith's expert witness were brief and did not provide the jury with any new information. Additionally, Jeffrey and Nancy Skorczewski, who provided key testimony during Laney Transportation's examination that Laney did not change lanes before stopping,⁴ were defense witnesses. The Laney Defendants therefore conducted direct examinations of these witnesses, not cross-examinations, and ...