Thompson v. Moore, 69232

• Decision Date: 12 March 1985
• Docket Number: No. 69232,69232
• Citation: 174 Ga.App. 331,329 S.E.2d 914
• Parties: THOMPSON v. MOORE.
• Court: Georgia Court of Appeals

Page 914

329 S.E.2d 914

174 Ga.App. 331

THOMPSON v. MOORE.

No. 69232.

Court of Appeals of Georgia.

March 12, 1985.

Rehearing Denied March 29, 1985.

Certiorari Granted April 25, 1985.

James E. Butler, Jr., B. Randall Blackwood, Columbus, Robert D. Cheeley, Buford, for appellant.

William D. Temple, William D. Strickland, Decatur, for appellee.

BIRDSONG, Presiding Judge.

We granted interlocutory appeal to determine an issue of first impression in this state, viz., whether, in an action for damages arising from an auto accident in which the cause is alleged to be driving while intoxicated, evidence is admissible, on the issue of punitive damages, that the defendant had plead guilty to the offense of driving while intoxicated twice before the subject accident and twice after. We hold that such evidence of incidents prior to the subject accident is admissible to show "wilful misconduct, malice ... wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences" and to authorize punitive damages. Ga.-Car. Brick, etc., Co. v. Brown, 153 Ga.App. 747, 749(2), 266 S.E.2d 531.

1. It is well settled that in a negligence action, the general character of the parties, and especially their conduct in other transactions, are irrelevant matter. OCGA § 24-2-2. "The fundamental principle is that evidence must be relevant to the facts in issue in the case on trial and tend to prove or disprove such facts; evidence of collateral or other facts which are incapable of affording any reasonable presumption or inference as to a principal fact or matter in dispute, or evidence which is too remote, is irrelevant and inadmissible. Accordingly, as a general rule, the commission of an act cannot be proved by showing the commission of similar acts by the same person or his agents or employees at other times and under other circumstances, unless the acts are connected in some special way, indicating a relevancy beyond mere similarity as to some particulars." 29 AmJur2d Evidence, § 298.

"In actions for damages for injuries sustained in an automobile accident alleged to have been caused by the negligence of the defendant, the issue before the court is the negligence or non-negligence of the defendant at the time and place of the accident. 45 CJ 1246, § 809. And each transaction must be ascertained by its own circumstances, and not by the reputation or character of the parties. 20 AmJur 300, § 319. It is a general rule that in a suit for negligence, evidence of similar acts or omissions on other and different occasions is not admissible. Holloman v. Hopson, 45 Ga.App. 762, 765(8), 166 SE 45." Wright v. Dilbeck, 122 Ga.App. 214(4), 217, 176 S.E.2d 715; see Williams v. Naidu, 168 Ga.App. 539, 540, 309 S.E.2d 686. See Grannemann v. Salley, 95 Ga.App. 778, 779, 99 S.E.2d 338. Generally, proof of the defendant's prior driving record, or of his general character for carelessness or recklessness, is impermissible. Willis v. Hill, 116 Ga.App. 848, 862, 159 S.E.2d 145.

Three cases bear directly upon the issue in this case. In Flint Explosive Co. v. Edwards, 84 Ga.App. 376, 389-390(3), 66 S.E.2d 368, we held that "[s]imilar acts or omissions on other and different occasions are not generally admissible to prove like acts or omissions at a different time and place [cits.]," but we held further, " '[w]hen motive, malice, or intent is involved, evidence may be admissible which is not so under an issue of simple negligence,' " citing Southern R. Co. v. Davis, 132 Ga. 812, 819, 65 S.E. 131. Directly upon the question of wantonness as illustrated by acts showing a reckless indifference to consequences, the Flint Explosive Co. opinion allowed evidence of other negligent occurrences which the appellants knew from previous experience had resulted in injuries similar to the appellee's and which proved that "in utter indifference to consequences" appellants continued on a course of conduct which experience had taught them could only result in disaster for the purchaser. "[S]uch a reckless indifference to consequences known to them would be admissible on the question of malice or wanton misconduct, but it would not be admissible on the question of whether the act itself was negligent, or whether that negligence was the proximate cause of the injury." Flint Explosive Co., supra, 84 Ga.App., p. 390, 159 S.E.2d 145.

In Gunthorpe v. Daniels, 150 Ga.App. 113, 257 S.E.2d 199, the plaintiff sought to prove, relative to punitive damages, that the defendant had performed orthodontic services on persons other than the plaintiff which services had resulted in similar injuries to those persons. We held that "pleadings and evidence to the effect that the defendant knew from previous experience that the alleged negligence on his part would probably result in injury to the plaintiff, because he knew that such carelessness on his part in the past had resulted in similar injuries to others but continued in this course of conduct in utter indifference to the consequences, are admissible on the question of malice or wanton misconduct, but not on the question of whether the act itself was negligent. Flint Explosive Co. v. Edwards, [supra]; see also Hulsey v. Sears, Roebuck & Co., 138 Ga.App. 523, 526(3) (226 SE2d 791)." Id., pp. 114-115, 257 S.E.2d 199.

In Skil Corp. v. Lugsdin, 168 Ga.App. 754, 755, 309 S.E.2d 921, we held that evidence that the defendant had received 48 complaints of the machine defect which had injured the plaintiff was admissible as being relevant to the issue of punitive damages. "Where it was alleged that with reckless indifference to the consequences, appellant failed to perform its duty to avoid the threatened injury, evidence that appellant knew from complaints of similar incidents that the probable consequence of a certain defect would be to inflict injury was relevant to the question of malice or wanton misconduct. See Gunthorpe, [supra].... See also Jackson v. Co-op Cab Co., 102 Ga.App. 688(3) (117 SE2d 627)."

In this case, the trial court, having first allowed evidence of appellant's guilty pleas, then sua sponte declared a mistrial on the basis that the evidence was inadmissible and patently prejudicial. The Gunthorpe case was studied by the trial court, but rejected as authority to admit the evidence because Gunthorpe involved evidence of prior negligent acts resulting in actual injuries. To the same effect is Flint Explosive Co., supra. But the Skil Corp. case admitted evidence of complaints of a defect, not known injuries, and we think the gist of Gunthorpe and Flint Explosive Co. is the defendant's prior knowledge of a dangerous condition likely to result in injuries, (not necessarily knowledge of an actual injury) and the defendant's repetition or continuation of such dangerous act with conscious indifference or disregard of the consequences.

A case in point is Jackson v. Co-Op Cab Co., supra, p. 693(3), 117 S.E.2d 627, where it was held that it was for the jury to decide whether a driver who was subject to spells of dizziness and unconsciousness, "in undertaking to drive ... an automobile at a high rate of speed along a public highway, was [in] such a disregard of probable consequences" (Tift v. State, 17 Ga.App. 663(6), 88 S.E. 41) as to authorize exemplary damages in a civil action. The ground in that case was negligent entrustment as in Jones, supra, and Willis, supra, but we see no reason why the same evidence should not be admissible on the issue of the driver's own wilful and wanton conduct. In fact there is every reason to conclude that the driver is more likely to be aware of his own incompetence than a respondeat superior. We can think of no circumstance more wilful and wanton, more indicative of a conscious indifference to consequences, than repeated occurrences of driving while intoxicated. The fact that no injuries had previously occurred is largely irrelevant; the question for the jury would be whether in this particular case the appellee, having plead guilty to two instances of driving while intoxicated, acted in conscious disregard of consequences by again driving while intoxicated.

A plea of guilty is admissible as an admission against interest. Akin v. Randolph Motors, 95 Ga.App. 841, 848, 99 S.E.2d 358. In this case, appellant's two prior pleas of guilty for driving under the influence stand as evidence of other occurrences relevant to punitive damages. The only reason to exclude the evidence would be the danger of...