Thomason v. Harper

• Decision Date: 15 March 1982
• Docket Number: Nos. 63072,63073,s. 63072
• Citation: 289 S.E.2d 773,162 Ga.App. 441
• Parties: THOMASON v. HARPER. CHILDRE CHEVROLET, INC. v. HARPER.
• Court: Georgia Court of Appeals

Page 773

289 S.E.2d 773

162 Ga.App. 441

THOMASON v. HARPER.

CHILDRE CHEVROLET, INC. v. HARPER.

Nos. 63072, 63073.

Court of Appeals of Georgia.

March 15, 1982.

Rehearing Denied April 2, 1982.

James D. Maddox, Rome, for appellant in No. 63072.

Thomas Henry Nickerson, Atlanta, J. Clinton Sumner, Jr., Rome, Hugh Kemp, Dalton, for appellee in No. 63072.

J. Clinton Sumner, Jr., Rome, for appellant in No. 63073.

Thomas Henry Nickerson, Atlanta, James D. Maddox, Rome, for appellee in No. 63073. CARLEY, Judge.

Appellee-Harper, plaintiff below, instituted the instant action to recover for personal injuries sustained in a collision between her vehicle and that being operated by appellant-Thomason and owned by appellant-Childre Chevrolet. The jury returned a verdict in favor of appellee and against both appellants and judgment was entered thereon. Following the denial of their respective motions for new trial, appellants appeal.

1. Appellee sought to establish liability against appellant-Thomason on general negligence principles and against appellant-Childre Chevrolet under the doctrine of respondeat superior and the theory of negligent entrustment. Prior to trial, appellant-Thomason filed a motion pursuant to Code Ann. § 81A-142(b) requesting that there be a separate trial of appellee's allegations of negligent entrustment against appellant-Childre Chevrolet. After a hearing and consideration of argument of counsel, the trial court denied Thomason's motion. This ruling is enumerated as error.

In essence, appellant-Thomason contends that he was denied the right to a fair trial because of the prejudicial evidence relating to his prior driving record and drinking habits which was placed before the jury in connection with appellee's allegations of negligent entrustment against appellant-Childre Chevrolet.

The general rule is that " '[i]n actions arising out of automobile collisions, the issue is the negligence or non-negligence of the operator at the time and place of the event, and each such transaction is to be ascertained by its own circumstances and not by the reputation or character of the parties. [Cits.]' " Grannemann v. Salley, 95 Ga.App. 778, 779, 99 S.E.2d 338 (1957). "[I]n a suit for negligence evidence of similar acts or omissions on other and different occasions is not admissible,..." Hollomon v. Hopson, 45 Ga.App. 762, 765(8), 166 S.E. 45 (1932). Thus, in such cases, "... proof of [the allegedly negligent operator's] prior driving record, or of his general character for carelessness or recklessness in driving, is impermissible [Cits.]. Nor is it permissible to show particular instances of negligence on other occasions [Cits.]." Willis v. Hill, 116 Ga.App. 848, 862-863, 159 S.E.2d 145 (1967) rev'd on other grounds 224 Ga. 263, 161 S.E.2d 281 (1968). "To allow the prior driving record in evidence would create a danger that the jury might draw the inference long forbidden in our law--that because the [operator] had been negligent on other occasions he was negligent on the occasion in question. Admission of evidence which is both irrelevant and prejudicial is harmful error. [Cits.]." Willis v. Hill, supra at 865, 159 S.E.2d 145.

On the other hand, under the theory of negligent entrustment "liability is predicated...on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness [Cits.]" Saunders v. Vikers, 116 Ga.App. 733, 735(5), 158 S.E.2d 324 (1967). "[E]vidence showing the driver's prior recklessness and the employer's knowledge thereof...is relevant, and indeed essential, to prove liability under the negligent entrustment theory." Willis v. Hill, supra 116 Ga.App. at 863, 159 S.E.2d 145. Cf. Ficklen v. Heichelheim, 49 Ga.App. 777(6), 176 S.E. 540 (1934).

We are thus faced with the following dichotomy: Evidence of Thomason's prior driving habits and propensity for recklessness and appellant-Childre Chevrolet's knowledge thereof, though irrelevant and prejudicial in resolution of the issue of Thomason's negligence or non-negligence at the time of the collision in question, is essential to prove appellant-Childre Chevrolet's liability under the negligent entrustment theory. Relying upon Chupp v. Henderson, 134 Ga.App. 808, 216 S.E.2d 366 (1975), appellant-Thomason contends that the only solution to this problem is a separate trial of the negligent entrustment issue.

We find the facts in Chupp v. Henderson, supra to be distinguishable from those in the instant case and appellant-Thomason's reliance thereon to be misplaced. We interpret Chupp to stand for the proposition that where a plaintiff seeks to impose liability on the employer-entrustor of the defendant driver under both the doctrine of respondeat superior and the theory of negligent entrustment for acts of the defendant driver, and the employer-entrustor admits its liability under respondeat superior for any negligence of the driver, the liability link from the negligence of the driver to the employer-entrustor has been established rendering proof of negligent entrustment unnecessary and irrelevant. Reference in Chupp to a separate trial dealt with a claim which was separate and distinct from the claim for compensatory damages against both defendants jointly and severally. By that separate and distinct claim, the plaintiffs in Chupp sought to recover "punitive damages" against the employer only based upon negligent entrustment and the employer's alleged "conscious indifference and wanton and reckless disregard of the consequences of employing [the defendant driver]". Chupp, supra at 809, 216 S.E.2d 366.

In the instant case, plaintiff sought only compensatory damages against both appellants jointly and severally. More importantly, appellant-Childre Chevrolet admitted that it owned the vehicle driven by appellant-Thomason at the time of the collision but denied the existence of a master-servant relationship with Thomason. Appellant-Thomason admitted that he was employed by Childre Chevrolet and that he was operating the vehicle with the permission of Childre Chevrolet. However, appellant-Thomason answered that he was unable (apparently due to traumatic amnesia as a result of the collision) to admit or deny the allegation that he was within the scope of his employment at the time of the collision. Hence, the liability link from the alleged negligence of appellant-Thomason to appellant-Childre Chevrolet was not admitted and, thus, the theory of negligent entrustment for establishing such liability became relevant. " '[D]efendants...cannot have their defense cake and eat it too.' In cases where liability would be multiple--e.g., traditional agency, family purpose and negligent entrustment--plaintiffs are free to choose their basis of relating the acts of the driver to the non-driver defendant and may plead and pursue all until such time as the non-driver defendant admits legal responsibility for the performance of the driver in the occurrence giving rise to the litigation. Should the non-driver defendant (usually the owner) seek to insulate himself from such performance, however, or should his admission be ineffective to subject him to liability to the same extent as could be imposed upon him as a 'negligent entrustor,' a plaintiff may proceed under the entrustment theory." (Emphasis supplied.) Willis v. Hill, supra, 116 Ga.App. at 865-866, 159 S.E.2d 145.

By virtue of appellant-Childre Chevrolet's denial of liability under the doctrine of respondeat superior, evidence proving negligent entrustment became relevant to establish a liability link from the alleged negligence of appellant-Thomason to appellant-Childre Chevrolet. In admitting the evidence of Thomason's past driving record and habits, the trial court instructed the jury that such evidence was not to be considered in resolution of the issue of the negligence or non-negligence of appellant-Thomason on the occasion in question. In so doing, the trial court limited the admission of such evidence for the sole and exclusive purpose of proving negligent entrustment. While appellant-Thomason argues that the grant of a separate trial as to the issue of negligent entrustment was the only way he could have been protected from such potentially prejudicial evidence, he does not contend that the instructions given by the trial court were insufficient to inform the jury as to the limited purpose for which such evidence was admitted and to be considered by it. Appellant-Thomason offers no proof, other than a substantial jury verdict for appellee, to rebut the presumption that the jury understood and correctly applied the limiting instructions given by the trial court. Cf. Stanley v. Squadrito, 107 Ga.App. 651, 658, 131 S.E.2d 227 (1963).

In view of the fact that evidence tending to show negligent entrustment would be relevant by virtue of appellant-Childre Chevrolet's denial of liability under respondeat superior and that the admission of such evidence was restricted to that purpose only, we find that the interests and right of the parties were adequately protected and that no prejudice occurred. Cf. Jones v. Cloud, 119 Ga.App. 697, 702(2), 168 S.E.2d 598 (1969); Ga. Power Co. v. Hubbard, 142 Ga.App. 531, 533(4), 236 S.E.2d 515 (1977). Rogers v. Eckerd Drugs of Ga., 149 Ga.App. 788(2), 256 S.E.2d 130 (1979). Accordingly, we find that the trial court did not abuse his discretion in denying appellant-Thomason's motion for separate trials under Code Ann. § 81A-142(b) and, thus, conclude this enumeration of error to be without merit.

2. In appellee's effort to prove the negligent entrustment theory of her case, testimony was elicited from appellant-Thomason concerning his previous driving record, intemperate habits, and specific instances of...