Steve M. Solomon, Jr., Inc. v. Edgar

Decision Date31 May 1955
Docket NumberNo. 2,No. 35625,35625,2
Citation88 S.E.2d 167,92 Ga.App. 207
PartiesSTEVE M. SOLOMON, Jr., Inc. v. Eugene EDGAR
CourtGeorgia Court of Appeals

Syllabus by the Court.

1. 'In a suit against two or more defendants, where the judgment is adverse to the defendants, and one of them makes a motion for a new trial, which is overruled, this defendant can except to the judgment overruling his motion, and bring the case to the Supreme Court or the Court of Appeals, as the case may be, without making the other defendant or defendants a party or parties in the bill of exceptions, and the failure to do so will not work a dismissal of the writ of error.'

2. The evidence is adequate to support the verdict. The general grounds and the special ground numbered 9 are without merit.

3. No proper foundation was laid for the reproduction of a recording of a mechanical transcription device before the jury.

4. 'All the * * * requirements as to front lights and rear red light and as to traffic are applicable whether the car be standing in the highway or moving forward or backward.'

5. Special grounds numbered 7 and 8 show no cause for reversal for the reasons given in the opinion.

Eugene Edgar, the defendant in error (whom we shall call the plaintiff), entered suit against Steve M. Solomon, Jr., Inc., plaintiff in error (whom we shall call the defendant), with its office and principal place of business in Macon, Bibb County, Georgia, and Ernest Ford (hereinafter called the agent Ford), the alleged agent of the defendant. The petition alleged that the agent Ford was an employee of the defendant; and, while acting within the scope of his authority as such agent and in the course of his employment, he parked a truck belonging to the defendant on U. S. Highway number 129.

Other paragraphs of the petition allege:

'That on or about 7:15 p. m. on December 15, 1952, your petitioner was driving his automobile, a 1950 model Buick on U. S. Highway No. 129, traveling between Gray and Macon, Georgia, and when going up the hill in the direction of Macon approaching the entrance to the nursery of R. L. Wheeler, he ran into an International truck owned by the defendant Solomon, which was parked on the highway without any lights on it, and in your petitioner's lane of traffic, towit, the right side of the road going toward Macon in the direction in which he was traveling.

'That your petitioner at said time and place was driving approximately 45 miles an hour with his headlights on, and at about the point of the collision with the said [Defendant's] International truck a car was coming in the opposite direction meeting him, and your petitioner did not see the said International truck until it was too late to stop before striking same.

'That the defendant, Ernest Ford, knew that the said highway was heavily travelled, with thousands of automobiles and other motor vehicles passing over same as all times of the day and night.

'That the said truck was parked at about a 45 degree angle across petitioner's side of the road, with the left front wheel of the truck about the center line of the highway, and with the left rear wheel about the edge of the pavement when it was struck by petitioner's car.

'That there were no lights of any kind on said truck, nor had any flares been put out in the highway, nor was there anyone in the highway to give him any warning that the said truck was blocking his lane of traffic.

'That the front of your petitioner's car struck the left side of the said International truck. * * *

'The defendant, Ernest Ford, negligently parked said truck within 8 feet of the center line of the highway, in violation of the laws of Georgia, which constitutes negligence per se, and failed to have any lights on said truck, either tail lights or headlights, in violation of the laws of Georgia.'

Other paragraphs of the petition allege injuries to the plaintiff and his car amounting to upwards of $27,000.

The defendant denied all the substantial allegations of the petition, and further alleged that the agent Ford took the truck of the defendant from its place of business without its knowledge or consent and without authorization on its part, and that the defendant is not responsible in any way for any acts or doings while he was in possession of the truck. The jury returned a verdict of $8,000 against the defendant and the alleged agent Ford.

A motion for new trial was filed and thereafter amended. The court denied the motion and the defendant assigns error here. The plaintiff made a motion to dismiss the bill of exceptions because the defendant did not, in the bill of exceptions, make the agent Ford a party defendant. We will first deal with whether or not the bill of exceptions will be dismissed. Should it be, there will be nothing else for this court to decide; otherwise this court must pass upon the other issues involved under the general and special grounds.

Martin, Snow & Grant, Macon, for plaintiff in error.

Jackson & Jackson, Gray, H. T. O'Neal, Jr., Macon, for defendant in error.

GARDNER, Presiding Judge.

1. As to the plaintiff's motion to dismiss, our attention is called by him, first to Lake v. DeLaperriere, 68 Ga.App. 464, 23 S.E.2d 518. Counsel contends that this decision is controlling in favor of the plaintiff. This question is somewhat confusing. The decision relied on was based by the majority opinion upon Edwards v. Wall, 153 Ga. 776, 113 S.E. 190. In Lake v. DeLaperriere, supra, there was a dissenting opinion to which we call attention. The dissent calls attention to many decisions which hold to the contrary to the holding of the majority opinion. It is interesting to note what this court said in Bedgood v. Rogers, 81 Ga.App. 343(1, 2), 58 S.E.2d 473. The Supreme Court in Ball v. Moore, 181 Ga. 146, 182 S.E. 28, saw fit to explain and limit its former decision in Edwards v. Wall, supra. The whole situation seems crystalized in an expression used by counsel for the plaintiff as follows: 'There is one factor which we have never seen discussed in any of the decisions, and that is the fact that an appellate court cannot possibly tell where the interest of an unserved defendant lies. On the face of things, Ford would be interested in reversing an $8,000 judgment. But, as a matter of fact, is this necessarily so? What we are trying to say is that he could well feel that the injuries in this case were so serious, and the liability so clear, that an $8,000 judgment was so light as to greatly please him. He might or might not want the judgment sustained. After all, there have been many plaintiffs who wept bitterly over verdicts as light as this. The whole point of serving a bill of exceptions is to afford the party served an opportunity to protect his interest. Nobody but the party served can know exactly where his interests lie. But when a man has an $8,000 judgment against him, and his codefendant goes tampering with it without his knowledge, his interests are certainly at stake.' We agree thoroughly with able counsels' statement. We do not understand how an appellate court could determine, in the light of the Code section or decisions, whether or not the interest of a particular party would be served or jeopardized by a particular verdict rendered. This is particularly true where, as here, the person sought to be made a party defendant does not plead, in a trial court, and does not in any manner whatsoever seek to become a party in the appellate court. The query is just why the party litigant does not, by pleading in the trial court, himself object to the verdict of the trial court and does not take any measures himself to convince the appellate court that he is interested in the verdict rendered. We have reached the conclusion that the Code section and the record in this case, together with all decisions rendered pertaining to the Code section, are controlled adversely to the contentions of the movant to dismiss the bill of exceptions. We think the view against dismissing the bill of exceptions is correct. We cannot comprehend just why a rule should be established to require a party to become a party defendant who does not in any way express or evidence a desire to be interested...

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87 cases
  • Phagan v. State
    • United States
    • Georgia Supreme Court
    • 16 d3 Julho d3 1997
    ...into evidence of a videotape by requiring that the seven requirements for admission of an audiotape set forth in Solomon, Inc. v. Edgar, 92 Ga.App. 207, 88 S.E.2d 167 (1955) be met. Allen v. State, 146 Ga.App. 815(2), 247 S.E.2d 540 (1978). Since that time, however, the appellate court has ......
  • Isaacs v. State
    • United States
    • Georgia Supreme Court
    • 30 d4 Novembro d4 1989
    ...at the guilt phase of the trial. (a) We find that a proper foundation was laid for playing the tape to the jury. Solomon, Inc. v. Edgar, 92 Ga.App. 207(3), 88 S.E.2d 167 (1955). Fuller testified that no changes, additions or deletions had been made to the tape since it was recorded. That th......
  • Ansley v. State
    • United States
    • Georgia Court of Appeals
    • 27 d1 Setembro d1 1971
    ...sustained, which objection was that no proper foundation or basis had been laid for such introduction. In Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207, 211, 88 S.E.2d 167, 171, it is held that 'a proper foundation for their (mechanical transcriptions) use must be made as follows: (1) It must......
  • Dick v. State
    • United States
    • Georgia Supreme Court
    • 25 d2 Novembro d2 1980
    ...laid. Brooks v. State, 141 Ga.App. 725, 234 S.E.2d 541 (1977); Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976); Solomon, Inc. v. Edgar, 92 Ga.App. 207, 88 S.E.2d 167 (1955). The record in this case affirmatively shows that the mechanical transcription device was capable of taking testimon......
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