Wahnschaff v. Erdman

• Decision Date: 03 April 1998
• Docket Number: No. A98A0786.,A98A0786.
• Citation: 502 S.E.2d 246,232 Ga. App. 77
• Parties: WAHNSCHAFF v. ERDMAN.
• Court: Georgia Court of Appeals

502 S.E.2d 246

232 Ga. App. 77

WAHNSCHAFF v. ERDMAN.

No. A98A0786.

Court of Appeals of Georgia.

April 3, 1998.

Certiorari Denied September 11, 1998.

Hyatt & Hyatt, John M. Hyatt, Decatur, Tyron C. Elliott, Manchester, for appellant.

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, Webb, Carlock, Copeland, Semler & Stair, Frederick M. Valz III, Jessica D. McKinney, Atlanta, for appellee. ELDRIDGE, Judge.

On August 12, 1988, an automobile driven by Jennifer Erdman rear-ended Lorain C. Wahnschaff, plaintiff-appellant. Plaintiff sued Ms. Erdman and her father, Gerard Erdman, defendant-appellees, under the Family Purpose Doctrine.

Plaintiff's complaint in two separate paragraphs pled the Family Purpose Doctrine. Paragraph 12 of the complaint reads as follows: "The 1976 Chevrolet Vega automobile driven by Defendant Jennifer B. Erdman in said collision was provided to Defendant Jennifer B. Erdman by her father, Gerard Erdman, as a family purpose automobile as defined by the laws of Georgia." Paragraph 13 states as follows: "At the time of the above described collision, said 1976 Chevrolet Vega automobile was being operated by Defendant Jennifer B. Erdman within the scope of the Family Purpose Doctrine as defined by the laws of Georgia." Defendant Gerard Erdman admitted both paragraphs of the complaint. Ms. Erdman, in her answer, also admitted such paragraphs.

Over four years later, after the complaint against Ms. Erdman had been dismissed for insufficient service, the defendant Gerard Erdman (hereinafter referred to as defendant) amended his answer to paragraphs 12 and 13 of the complaint. In the amended answer, defendant denied that the vehicle was used under the Family Purpose Doctrine. No pretrial order had been entered prior to defendant's amendment withdrawing the admission in judicio of the Family Purpose Doctrine. The pretrial order was not filed until more than 18 months after the amendment. In the consolidated pretrial order, plaintiff contended that defendant provided the vehicle pursuant to the Family Purpose Doctrine. The defendant denied that the vehicle was a family purpose vehicle in the consolidated pretrial order. The consolidated pretrial order stated that "the issues for determination by the jury according to the Plaintiff are as follows: `Liability of Defendant under the family purpose doctrine and the amount of damages to be awarded to Plaintiff.'"

On March 3, 1997, the case was tried before a jury. During the plaintiff's case-in-chief, the original admissions in judicio, the answers to paragraphs 12 and 13, were read to the jury as admissions against interest of the defendant. The defendant offered testimony about the amendment and the withdrawn admissions in judicio without objection. Plaintiff introduced evidence that the vehicle was titled in the defendant's name as the sole title owner. The evidence showed that, on July 29, 1988, defendant purchased the vehicle from Charles Norton and signed the back of the title as purchaser. However, defendant contended that the vehicle was purchased with his daughter's money and was titled in his name only because of her age. Ms. Erdman, on the other hand, testified that her father, the defendant, paid onehalf the cost of the car and that she paid $500, the other half. In March 1989, defendant sold the vehicle as the seller. The verified interrogatory answers of defendant and his daughter stated that the defendant owned the vehicle on the date of the collision. Ms. Erdman testified that she was the sole user of the car; that she had the only keys to the car; that she paid for the maintenance and gas for the car; and that she did not have to ask permission to use the vehicle. She was a minor, living in her father's house, at the time of the collision.

At the close of all of the evidence, plaintiff made a motion for directed verdict as to the issue of defendant's vicarious liability under the Family Purpose Doctrine. The trial court denied the motion. The jury returned a defendant's verdict. Plaintiff moved for judgment notwithstanding the verdict and in the alternative for a new trial, which were both denied. A timely notice of appeal was filed as to the denial of such motion.

1. Plaintiff's first enumeration is that the trial court erred in denying her motion for directed verdict, because the defendant was conclusively bound by his original admission as to the Family Purpose Doctrine. We do not agree.

Under OCGA § 24-3-30, admissions in judicio in a party's pleadings bind the party so that they cannot put up evidence over objection to contradict such admissions. See Reynolds v. Reynolds' Estate, 238 Ga. 1, 3, 230 S.E.2d 842 (1976); State Hwy. Dept. v. Lumpkin, 222 Ga. 727, 728, 152 S.E.2d 557 (1966); Ditch v. Royal Indem. Co., 205 Ga. App. 478, 479, 422 S.E.2d 868 (1992); Strozier v. Simmons U.S.A. Corp., 192 Ga.App. 601, 602-603, 385 S.E.2d 677 (1989). However, if evidence that contradicts the admission in judicio is admitted either without objection or over the objection of the other party, then under OCGA § 9-11-15(b) such evidence shall be deemed to amend the pleadings, so that the admission in judicio is withdrawn, the trial judge is deemed to have allowed such withdrawal of the admission in judicio, and the party may put up evidence to contravene the admission. Walker v. Jack Eckerd Corp., 209 Ga.App. 517, 434 S.E.2d 63 (1993). If the party making the admission in judicio wishes to contravene the admission, then the party must first amend the pleading to withdraw the admission in judicio before such evidence may be submitted. OCGA § 9-11-15; Summerlot v. Crain-Daly Volkswagen, 238 Ga. 546, 547(1), 233 S.E.2d 749 (1977); Head v. Lee, 203 Ga. 191, 203(8), 45 S.E.2d 666 (1947); Strozier v. Simmons U.S.A. Corp., supra at 602-603, 385 S.E.2d 677.

Although a party may withdraw or strike from the pleadings an admission in judicio by amendment and tender evidence to contravene such admission, the opposite party can tender in evidence the original admission in judicio against such party as an admission against interest. Stallings v. Britt, 204 Ga. 250, 49 S.E.2d 517 (1948); Alabama Midland R. Co. v. Guilford 114 Ga. 627, 40 S.E. 794 (1902); Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138, 33 S.E. 945 (1899); Strozier v. Simmons U.S.A. Corp., supra; Lawson v. Duke Oil Co., 155 Ga.App. 363, 270 S.E.2d 898 (1980); Improved Fertilizer Co. v. Swift & Co., 15 Ga.App. 601, 84 S.E. 132 (1915). Since, in this case, the defendant amended the answer prior to the entry of the pretrial order and struck the admission in judicio as to family purpose, the consolidated pretrial order set forth that this was now a contested issue, and evidence contradictory to the admission was admitted without objection at trial, then the admission no longer had the binding effect of an admission in judicio.

2. The plaintiff's second enumeration is that the trial court erred in denying plaintiff's motion for directed verdict as to defendant's liability under the Family Purpose Doctrine. We do not agree.

To constitute an admission in judir that binds the party and upon withdrawal by amendment becomes an admission against interest, it must constitute an admission of fact or of the existence of a legal relationship. "[A]n admission in judicio applies only to the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact. Thus, allegations which are conclusory, or which assert mere opinions of the pleader are not admissions in judicio. There may be an admission in judicio as to the existence of a legal relationship between the parties, but not concerning the effect of such relationship, as this would be a legal conclusion. [Cit.] The rule pertaining to admissions in pleadings or other admissions in judicio are not applicable where the admission is merely the opinion on the part of the party making it as to the legal effect." (Punctuation omitted.) Howell Mill/Collier Assoc. v. Pennypacker's, Inc., 194 Ga.App. 169, 172(2), 390 S.E.2d 257 (1990).

The nature of the alleged admission in this case must be determined. If it was an admission of fact or of a legal relationship, then the admission would be evidence against the penal interest of the defendant. However, if the admission was an opinion or conclusion, then it would lack probative value as evidence. See Ellerbee v. Interstate Contract Carrier Corp., 183 Ga.App. 828, 360 S.E.2d 280 (1987); Perry & Co. v. New South Ins. Brokers, etc., 182 Ga.App. 84, 354 S.E.2d 852 (1987).

In this case, an alleged admission in judicio was made regarding a legal opinion as to the effect of a relationship...