Southeast Transport Corp. v. Hogan Livestock Co., Inc.

• Decision Date: 07 January 1975
• Docket Number: 2,Nos. 1,No. 49674,3,49674,s. 1
• Citation: 212 S.E.2d 638,133 Ga.App. 825
• Parties: SOUTHEAST TRANSPORT CORPORATION et al. v. HOGAN LIVESTOCK COMPANY, INC
• Court: Georgia Court of Appeals

Page 638

212 S.E.2d 638

133 Ga.App. 825

SOUTHEAST TRANSPORT CORPORATION et al. v. HOGAN LIVESTOCK COMPANY, INC.

No. 49674.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Jan. 7, 1975.

Rehearing Denied Feb. 3, 1975.

Sharpe, Hartley & Newton, Hugh B. McNatt, Lyons, for appellants.

Bouhan, Williams & Levy, James M. Thomas, Savannah, for appellee.

Syllabus Opinion by the Court

MARSHALL, Judge.

Raymond Brantley, operating a truck belonging to Southeast Transport Corporation, was traveling easterly on Highway No. 17 in Jenkins County and following a truck of Hogan Livestock Company loaded with swine. He asserted that the driver of the Hogan truck had been 'riding the center line' of the highway for some distance and that he decided that it would be best if he passed the Hogan vehicle. When he could see for enough ahead to determine that the road was free of oncoming traffic he pulled over to the left and started to pass. When he thought that he had passed the Hogan truck he started to cut back over to the right, but looked in his rear view mirrors and saw the Hogan truck, over the center line and with its wheels turned into the Southeast truck at about a 45 degree angle. The left front wheel of the Hogan truck caught the front wheel of a tank trailer pulled by Southeast, and that caused the Hogan truck to turn back into the ditch and road bank to the right and turn over. Many of the hogs were killed.

Hogan had insurance on the cargo with Continental Insurance Company and it paid the loss, taking a loan receipt from Hogan. Thereafter this suit was brought in Hogan's name against Southeast to recover for the loss. Southeast moved to require Hogan to name Continental as an additional party plaintiff because it was 'a party at interest.' The court denied the motion.

On trial of the case Hogan used as a witness officer Baxter, who had made an investigation of the event, and he described what he found on the scene in the way of dead hogs, tire marks, etc., and later counsel asked him whether he could 'give us a further elaboration on the description of the tire and smudge marks which you observed at the scene?' Defendant's counsel objected on the ground that the witness had already testified concerning the tire and smudge marks and that the evidence would be repetitious. The objection was overruled.

Plaintiff used as a witness Harvey Fitzgerald, Jr., who testified concerning an investigation of the matter which he had made after the accident at the instance of his employer, Underwriters Adjusting Company. On cross examination counsel for the defendant sought to inquire of the witness as to whether the adjusting company was acting in behalf of Continental Insurance Company in having the investigation made, but on objection the court disallowed the inquiry.

Defendant objected to the giving of requested charges on the matters of the duties of an owner of a vehicle used on the highway (a) to keep it in good condition and repair, and (b) to observe no-passing zones established on the highway by marking placed by the State Highway Department. The objections were overruled.

The jury returned a verdict for the plaintiff, and from the overruling of its motion for new trial defendant appeals, enumerating error on the matters above alluded to. Held:

1. In seeking to have Continental Insurance Company added as a party plaintiff it was and is the contention of appellant that when the company paid to Hogan its loss and took from it a loan receipt which authorized Continental to proceed, as its expense, to bring suit in Hogan's name to recover from Southeast, it amounted to an assignment of Hogan's claim or cause of action and made Continental a party at interest in this litigation, and that, as a party at interest, it should be joined under the provisions of Code Ann. § 81A-117(a) (Ga.L.1966, pp. 609, 629; 1968, pp. 1104, 1107).

If this were a matter of first impression the writer of this opinion would be inclined to agree with this contention. But it has been held that a loan receipt issued under these circumstances, and in the language of that used here, does not amount to an assignment, and that it is not required that the party advancing the money to cover the loss under an insurance policy, and taking the receipt, be made a party to an action subsequently brought to recover against a third party as the tortfeasor, and that the action may proceed in the name of the insured. McCann v. Dixie Lake & Realty Co., 44 Ga.App. 700, 162 S.E. 869; Green v. Johns, 86 Ga.App. 646, 72 S.E.2d 78. The language of the loan receipt involved here is substantially the same as that which appeared in those cases. A different result would obtain if the language had been like that in Kurtz v. Parker Plumbing & Heating Co., 118 Ga.App. 130, 162 S.E.2d 755, reversed in 225 Ga. 31, 165 S.E.2d 729.

2. The allowing of some repetition in the examination of a witness on direct examination is within the sound discretion of the judge, but it should be exercised with great caution and should be a rare rather than a common practice. Bigelow v. Young, 30 Ga. 121(4). Compare King v. Thompson, 59 Ga. 380(1). A careful consideration of the record here does not indicate an abuse of discretion.

3. We find no error in the refusal of the court to allow counsel for the defendant to cross examine the witness Fitzgerald concerning the identity of the insurance company for which his employer, Underwriters Adjusting Company, may have caused the investigation to be made. The witness had already, on direct examination, identified his employer and had testified that he made the investigation in the course of his employment.

Code § 38-1712 provides that 'The state of the witness' feelings to the parties, and his relationship, may always be proved for the consideration of the jury.' Continental Insurance Company was not a party to this action, and it does not appear that Fitzgerald had any relationship with it. His employment was not by it.

A witness is not impeached by virtue of his employment, but it is a matter which the jury is entitled to consider in judging his credibility. Thus, in a suit against a railroad it is proper to allow counsel to inquire of a witness whether he is an employee of the railroad, for showing a possibility of bias which he may have. Louisville & Nashville R. Co. v. Ledford, 142 Ga. 770(3), 83 S.E. 792. It is permissible to allow questioning as to what he is being paid for his appearance as a witness and who is paying him. Rogers v. Black, 121 Ga.App. 299, 301(1), 173 S.E.2d 431; Barrett v. Southern R. Co., 41 Ga.App. 70(10), 151 S.E. 690. It has been held that 'A party may show anything which may, in the slightest degree, affect the credit of an opposing witness.' McGriff v. McGriff, 154 Ga. 560(5), 115 S.E. 21. But we do not perceive that this requires the allowing of counsel to pursue the inquiry to the realm of the identity of his employer's customers unless it be relevant for some othe purpose. There is a limit to cross examination beyond which the court is not required to permit counsel to go. He may confine it to matters which are germane or relevant to the issues, or which may have a tendency to impeach the witness. We do not think that the limiting of the cross examination here was beyond the permissible bounds.

The fact of insurance is not an issue in a damage action such as this, and we have long held that evidence as to it should be excluded. '(I)ntroduction into evidence that 'he (the defendant) had insurance' was calculated to suggest to the jury that any damages found in favor of the plaintiff would be paid by the insurance company and not by the defendant, and was highly prejudicial to the defendant's cause. We think it tended to relax the consciences of the jurors trying the case and render tnem less responsive to their oaths to do impartial justice between the parties . . . Nor do we think that allowing the evidence as to the insurance is harmless because the jury had been notified that the defendant carried insurance in that they had been purged before the beginning of the trial . . . (T)he fact that the jurors had been questioned on their voir dire as to their interest in the insurance company is no justification for the injection of insurance into the case by the plaintiff on the trial.' Minnick v. Jackson, 64 Ga.App. 554, 560, 561, 13 S.E.2d 891, 895. See also McRee v. Atlanta Paper Co., 84 Ga.App. 181, 183, 65 S.E.2d 832; General Supply Co. v. Toccoa Plumbing Co., 138 Ga. 219, 75 S.E. 135; Hoard v. Maddox, 202 Ga. 274(4), 42 S.E.2d 744; Harper Warehouse, Inc. v. Henry Chanin Corp., 102 Ga.App. 489, 493, 116 S.E.2d 641; Lanier v. Lee, 111 Ga.App. 876, 878, 143 S.E.2d 487; Black v. New Holland Baptist Church, 122 Ga.App. 608, 609, 178 S.E.2d 571.

'These particular remarks by plaintiff's counsel were calculated to impress the minds of the jury with the idea that the defendant company would not have to pay the verdict and judgment, if against it, for the reason that it had an arrangement with an insurance company to pay all such verdicts for injuries to its employes. While the court did all that could be done to disabuse them of this impression, it must still have lingered in their minds. The most effectual way to stop such conduct on thepart of counsel is for the trial judge to grant a mistrial, whenever it occurs and a motion for a mistrial is made.' O'Neill Mfg. Co. v. Pruitt, 110 Ga. 577, 579, 36 S.E. 59.

The rule that the plaintiff be allowed the right of a thorough and sifting cross examination must be balanced against the rule that irrelevant matters of insurance coverage should be excluded from evidence. In the interest of justice, the matter of insurance which is not a germane issue, should be kept out.

4. The court gave plaintiff's request to charge the substance of Code Ann. § 68-1723 (Ga.L.1953, Nov. Sess., pp. 556, 615; 1963, pp. 333, 334), providing that 'No person shall drive or...