Southern Ry. Co. v. Georgia Kraft Co.

Decision Date14 July 1987
Docket NumberNo. 73648,73648
Citation360 S.E.2d 605,183 Ga.App. 884
PartiesSOUTHERN RAILWAY COMPANY v. GEORGIA KRAFT COMPANY.
CourtGeorgia Court of Appeals

Burt Derieux, Eileen M. Crowley, Keith J. Reisman, L. Hugh Kemp, Atlanta, for appellant.

W. Wray Eckl, Julia Anderson, Atlanta, for appellee.

BENHAM, Judge.

This litigation arose from a collision between a train belonging to and operated by appellant and a truck driven by Westbrook, an employee of the Burtons, a father and son who operate a pulpwood business. Contending that the Burtons were agents of appellee, appellant brought suit against appellee and the Burtons for damages to its train. After both sides rested at trial, the case was sent to the jury by means of a special verdict form reading as follows: "I. We the jury find that MELVIN WESTBROOK was: A. An agent or employee of Georgia Kraft Company. ( ) OR B. Not an agent or employee of Georgia Kraft Company. ( ) II. A. We the jury find that MELVIN WESTBROOK was negligent in causing the collision in this case. ( ) OR B. We the jury find that the evidence does not demonstrate that MELVIN WESTBROOK was negligent in causing the collision in this case. ( ) III. A. We the jury find for the plaintiff and award damages of $________. OR B. We the jury find for the defendant. ( )" Using that form, the jury found that Westbrook was not an agent or employee of appellee and found for the defendant. This appeal is from the judgment on that verdict.

1. In appellant's sixth enumeration of error, it complains of the use of the special verdict form on five grounds. Two of those grounds were not raised below and were, therefore, waived. C & W Land Dev. Corp. v. Kaminsky, 175 Ga.App. 774(2), 334 S.E.2d 362 (1985).

The remaining complaints are that the special verdict form, as submitted, was incorrect, misleading, and unduly prejudicial to appellant. We do not find the form of the special verdict faulty.

As to the complaint that the special verdict form mentioned only Westbrook's name and not the Burtons', we note that the trial court charged the jury extensively on appellant's theory of recovery and told them that Westbrook was an employee of the Burtons and that if the Burtons were agents of appellee, so was Westbrook. Since the jury may be presumed to consider the interrogatories in a special verdict form in light of the trial court's instructions (E. I. DuPont, etc., Co. v. Berkley & Co., 620 F.2d 1247 (8th Cir.1980)), and since there could be no question under the instructions given by the trial court that the jury need only find that the Burtons were agents of appellee in order to find that Westbrook was, we find no error in the form of the special verdict.

The basis of appellant's remaining complaints regarding the special verdict form is that it did not focus entirely on the contract between appellee and the Burtons. We do not find the scope of the special verdict form inappropriate. The essential question in agency cases such as this one is not only whether a contract gives the alleged principal the right to control the agent, but also whether the alleged principal has assumed such a right to control. See Slater v. Canal Wood Corp., 178 Ga.App. 877(1), 345 S.E.2d 71 (1986). In several cases involving the relationships between pulpwood producers and the dealers in or users of pulpwood, the courts have focused on a broader range of concerns than just the express terms of the contract. See, e.g., Slater, supra; Bowman v. C.L. McCord Land, etc., Dealer, 174 Ga.App. 914, 331 S.E.2d 882 (1985); and Hampton v. McCord, 141 Ga.App. 97, 232 S.E.2d 582 (1977). Our review of the record convinces us that the special verdict form is not subject to the criticisms raised by appellant.

2. The seventh enumeration of error in this case is that the trial court refused to employ appellant's suggested verdict form. Since that suggested form sought to focus the jury's attention solely on the contract between appellee and the Burtons, we find, for the reasons expressed in the preceding division of this opinion, no error in the trial court's refusal to adopt appellant's suggestion.

3. In appellant's enumerations of error numbered 8, 9, and 11, appellant takes issue with the charge to the jury as given and with the trial court's refusal to give certain of appellant's requested charges. The complaint that the trial court failed to give appellant's requests to charges numbered 9 and 12 is patently without merit since the trial court gave charges substantially the same as those requested. Ponder v. Ponder, 251 Ga. 323(3), 304 S.E.2d 61 (1983).

Appellant's argument regarding the trial court's giving in the charge certain instructions requested by appellee runs afoul of a venerable principle repeated recently in Robert & Co. Assoc. v. Tigner, 180 Ga.App. 836, 841, 351 S.E.2d 82 (1986): "On review the charge must be considered as a whole and each part in connection with every other part of the charge. [Cit.] A charge, torn to pieces and scattered in disjointed fragments may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand divided they fall. [Cits.]" Appellant has, for example, taken portions of the charge concerning various factors to be considered on the issue of agency and contends that these portions, considered separately, overemphasize particular factors. Perhaps such a criticism would be valid if the portions selected had been given to the jury out of context as appellant would have us consider them. Viewing the charge as a whole, however, we find that the trial court gave a balanced and thorough charge on all the pertinent issues in this case.

4. Appellant's tenth enumeration of error is directed first to remarks of the trial court which appellant characterizes as comments on the evidence. Since appellant did not object at trial to the purported expressions of opinion by the trial judge, it cannot complain about them on appeal. Walker v. Bishop, 169 Ga.App. 236(9), 312 S.E.2d 349 (1983).

Appellant also contends in that enumeration of error that the trial court's statement while giving one of appellant's requested charges on agency that "this is where the big issue is," improperly implied that there was considerable doubt in the court's mind that agency had been or could be proved. That contention is not supported by the record. It is apparent from context that the trial court was merely alerting the jury to the importance of an issue on which the success of appellant's case depended and on which appellant expended considerable effort at trial and on appeal. The tenth enumeration of error is without merit.

5. Appellant's twelfth enumeration of error concerns the trial court's charge on circumstantial evidence. Appellant argues that the trial court instructed the jury that circumstantial evidence was not sufficient unless it excluded every other reasonable hypothesis. If that were so, we would be inclined to agree that the charge was erroneous. Our review of the record, however, reveals that the trial court merely explained to the jury that the circumstantial evidence must be contrary to any other reasonable hypothesis. That instruction is in accord with the principles stated in Radcliffe v. Maddox, 45 Ga.App. 676(2), 165 S.E. 841 (1932). We find no error in the charge as given.

6. Appellee called the younger Burton as a witness. Appellant's counsel objected several times that appellee's counsel was leading his own witness. After sustaining several of appellant's objections to leading questions, the trial court undertook to explain to the jury that one was not normally permitted to ask leading questions of his own witnesses, but that the question of whether Burton was an employee of appellee was a contested issue in this case and, in order to avoid influencing the jury on that issue, the court was giving counsel more leeway than usual with regard to leading questions. "Permitting leading questions being a matter within the sound discretion of the judge, it will not constitute reversible error 'unless palpably unfair and prejudicial to the complaining party.' [Cits.]" Clary Appliance, etc., Center v. Butler, 139 Ga.App. 233(2), 228 S.E.2d 211 (1976). The trial court was merely exercising its discretion in this matter, and we find no abuse of that discretion.

7. Appellant's argument in support of its fifteenth enumeration of error consists of no more than a restatement of the enumeration of error, a statement of the trial court's action, and a contention that the action was "incorrect and invades the province of the jury and their deliberations." That does not constitute an argument in support of the enumeration of error. Haskins v. Jones, 142 Ga.App. 153(1), 235 S.E.2d 630 (1977). There being neither argument nor citation of authority offered in support of the enumeration of error, it is deemed abandoned. Rule 15(c)(2) of the Rules of the Court of Appeals of the State of Georgia.

8. Appellant's final enumeration of error (No. 16) raises the general grounds. It is sufficient to state that the evidence at trial authorized the jury to find that the Burtons were independent contractors and that their employees, therefore, were not servants of appellee. See Slater v. Canal Wood Corp., supra; Bowman v. C.L McCord Land, etc., Dealer, supra; and Hampton v. McCord, supra.

9. The rest of appellant's enumerations of error, all of which concern the issue of negligence, need not be addressed since the jury's finding against appellant on the issue of agency obviated the necessity of a decision on negligence and moots all questions involving that issue.

Judgment affirmed.

BIRDSONG, C.J., concurs.

DEEN, P.J., and SOGNIER and BEASLEY, JJ., concur in Divisions 1, 2, 3, 4, 6, 7, 8, and 9, and...

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