Smith v. Poteet

• Decision Date: 17 November 1972
• Docket Number: No. 3,No. 47551,47551,3
• Citation: 195 S.E.2d 213,127 Ga.App. 735
• Parties: , 63 A.L.R.3d 1243 Marien A. SMITH v. Henry W. POTEET et al
• Court: Georgia Court of Appeals

Page 213

195 S.E.2d 213

127 Ga.App. 735, 63 A.L.R.3d 1243

Marien A. SMITH v. Henry W. POTEET et al.

No. 47551.

Court of Appeals of Georgia, Division No. 3.

Nov. 17, 1972.

Rehearing Denied Dec. 6, 1972.

Congdon, Williams & Daniel, W. Barry Williams, Robert C. Daniel, Jr., Augusta, for appellant.

Fulcher, Hagler, Harper & Reed, Wiley S. Obenshain, III, Gould B. Hagler, George B. Rushing, Augusta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

Funerals are lachrymose affairs. For the plaintiff, an elderly mourning relative and retired schoolteacher, her sadness was increased when she sustained painful injuries from a fall which occurred as she was walking across the artificial grass cover customarily placed at the burial site. In the complaint filed against both the funeral director and the cemetery the negligence charged against both defendants was 'in permitting the hole or depression in the ground to remain in a spot where it would be walked into by complainant and in covering said hole or depression with artificial grass, so that it could not be seen or observed.' The funeral firm filed a third-party complaint against Wilbert Burial Vault Co. alleging the fault, if any, to be upon that concern which had prepared the area at the request of the funeral home. This third-party complaint was dismissed on the morning of the trial with the funeral director subsequently defending upon the theory that Wilbert Burial Vault Co. was an independent contractor so that its negligence, if any, would not be chargeable to Poteet. From the antagonistic ambiance concomitant with a hard-fought courtroom battle between capable advocates the jury returned a verdict for both defendants. This was followed by a motion for new trial which as amended was overruled and the instant appeal followed.

1. 'Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.' Code § 105-401. A duty of ordinary care was owed to plaintiff. The 'standard is whether a reasonably prudent person at the time and in the circumstances would have foreseen danger and what he reasonably would have done to prevent injury; negligence is defective foresight judged by this standard rather than by hindsight of what actually happened and the effectiveness of the action taken.' Shockley v. Zayre of Atlanta, Inc., 118 Ga.App. 672, 165 S.E.2d 179.

The facts sub judice are analogous to those in Roberts v. Wicker, 213 Ga. 352, 99 S.E.2d 84 where a judgment of nonsuit was granted. There plaintiff tripped on a threshold strip, commonly used in other buildings. 'One would not necessarily observe the ridge on the metal strip or the groove in it by walking through the door, but one would have to get down on the floor and take a level view of the strip to discern its condition. . . . There is nothing in the evidence to show or indicate the necessity of making such an inspection to ascertain the possible or probable existence of any defect, such as that other people had tripped or fallen while walking over the threshold strip. Ordinary diligence, under such circumstances and the facts of this case, did not require an inspection where the defendants had no reason to think an inspection was necessary.' Roberts v. Wicker, supra, pp. 354, 356, 99 S.E.2d pp. 85, 86.

"'The pedestrian is not entitled to an absolutely level and unobstructed passageway." Shearman & Redfield On Negligence, Vol. 4, p. 1817, § 795.' Butler v. Jones, 85 Ga.App. 158, 162, 68 S.E.2d 173, 177.

"Ordinary care and diligence, as applied to the keeping of premises in safe condition, is a very elastic term, varying the quantum of actual caution to be exercised according to the nature of the use to which the property is devoted', . . . and whether the condition could have been discovered by proper inspection (is a question) for the jury. (Cits.).' Jones v. Hunter, 94 Ga.App. 316, 320, 94 S.E.2d 384, 387, as cited with approval by Martin v. Henson, 95 Ga.App. 715, 737, 99 S.E.2d 251.

If there were any acts of negligence, who had the duty of care and thereby became liable for breach of this duty? 'The employer generally is not responsible for torts committed by his employee when the latter exercises and independent business, and in it is not subject to the immediate direction and control of the employer.' Code § 105-501. However, under Code § 105-502(5) the relationship of master and servant may be created where the contract gives, or the employer assumes 'the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.' Blair v. Smith, 201 Ga. 747, 748, 41 S.E.2d 133, 135. If there is a 'specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has (not) retained the right to control the manner, method, and means of the performance of the contract, and that the employee is . . . an independent contractor.' Golosh v. Cherokee Cab Co., 226 Ga. 636, 638, 176 S.E.2d 925, 927, as cited recently by the Court of Appeals in Moon v. Georgia Power Co., 127 Ga.App. 524, 194 S.E.2d 348.

As against the defendant funeral director, plaintiff emphasizes the provisions of §§ 84-801, 84-803 and 84-804 in Chapter 84-8 of our Code captioned 'Funeral Directors and Embalmers', codified from Ga.L.1950, p. 238 et seq. As is stated in the opening declaration of public policy, this statute is 'an exercise of the health powers of the State's with the legislation providing through a State board for licensing of persons as 'an embalmer or funeral director' who meet the qualifications specified in § 84-809. The rationale behind this statute is that unless a human body is properly embalmed and buried or cremated, it may become a health hazard. Thus, such services as involve handling the cropse cannot be delegated or contracted to an unlicensed individual. However, one must distinguish between the portions of a funeral director's work which are directly aligned with his statutory professional responsibility of embalming and burial and those responsibilities he assumes because of our social mores. ¹ The former is fixed by statute to avoid health hazards. The latter is decreed by society because of our culture and customs. Preparations made for relatives and friends to attend funeral services clearly fall under the latter category and no health hazard is involved. Therefore, Wilbert Burial Vault Co. was not forbidden by law from serving as an independent contractor in preparing the burial site including placement of the artificial grass carpeting.

The relationship between the parties was for the jury as the trior of fact to determine. That along with other factual issues were properly submitted to the jury for their determination. 'After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict.' Brown v. Wingard, 122 Ga.App. 544(1), 177 S.E.2d 797. Where there is evidence sufficient to support the verdict and it has the approval of the trial judge, the judgment will be affirmed. M. & G. Textile Co. v. West Point-Pepperell, 126 Ga.App. 43, 189 S.E.2d 878; Dade v. Dade, 213 Ga. 533, 100 S.E.2d 181. The judgment for the defendants is supported by the evidence and is in accordance with the law. Therefore, enumerations 1, 2, 3 and 11 dealing with the general grounds of the new trial motion are without merit.

3. Enumeration number 4 contends the court erred in permitting counsel for one co-defendant to cross examine the agent of another co-defendant. 'This court will not interfere with the action of the trial judge in allowing 'double' or 'multiple' crossexamination of witnesses, particularly in a situation such as here shown involving more than two parties, absent a showing of a manifest abuse of discretion. The clear intent of Code § 38-1705 is to recognize and allow the right of crossexamination 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 crossexamination, unless the absence of any 'distinct interests' clearly appears.' Gunnells v. Cotton States Mut. Ins. Co., 117 Ga.App. 123, 126, 159 S.E.2d 730, 733.

The defendants sub judice have definite distinct interests. If negligence is assumed then the jury must determine who committed the negligent act: (1) Westover Memorial Park, Inc., who cared for the grounds and dug the grave; (2) Wilbert Burial Vault Co., who supplied the vault and set up other equipment necessary for a funeral, such as artificial carpet, chairs and tent; (3) the Poteets who, as funeral directors, embalmed the body and arranged for services including the work done by Wilbert. In addition, the jury must determine whether the Poteets had assumed a master-servant relationship with Wilbert Burial Vault, and thus were responsible for its acts. The court did not abuse its discretion as the evidence clearly indicated 'distinct interest' among the defendants. See also Akridge v. Atlanta Journal Co., 56 Ga.App. 812, 194 S.E. 590 and Rainey v Moon, 187 Ga. 712, 717, 2 S.E.2d 405. Enumeration number 4 is therefore without merit.

4. Enumeration number 5 contends that the court erred in permitting defendant Howard Poteet to testify concerning his contract with Wilbert Burial Vault Co. This testimony is relevant as it would aid the jury in determining the status of Wilbert Burial Vault Co., and consequently whether the Poteets were liable for Wilbert's acts in addition to their own. 'Any evidence is relevant which logically tends to prove or to disprove a material fact which is at...