Whidby v. Columbine Carrier, Inc.

• Decision Date: 15 April 1987
• Docket Number: No. 74047,74047
• Citation: 182 Ga.App. 638,356 S.E.2d 709
• Parties: WHIDBY et al. v. COLUMBINE CARRIER, INC. et al.
• Court: Georgia Court of Appeals

Page 709

356 S.E.2d 709

182 Ga.App. 638

WHIDBY et al. v. COLUMBINE CARRIER, INC. et al.

No. 74047.

Court of Appeals of Georgia.

April 15, 1987.

Lester Z. Dozier, Jr., Macon, for appellants.

John C. Edwards, Macon, for appellees.

BIRDSONG, Chief Judge.

Plaintiffs Virginia and Glen Whidby brought this wrongful death action on behalf of their daughter, Janet Whidby, against Marion A. Williams, the driver of a tractor trailer truck, the owner of the truck, Columbine Carrier, Inc., and its insurer The Insurance Company of the State of Pennsylvania. The defendant, Williams, was traveling east on Highway 96 in Houston County at about 11:00 p.m. on April 8, 1983 when he struck Janet Whidby's vehicle at the intersection of Highway 96 and Moody Road. A stop sign and blinking red light faced Moody Road where she attempted to enter the intersection northbound. There was no stop sign on Highway 96, nor any stop light, but there was a caution light, and there was a bend or curve of the road on Highway 96 as it approached Moody Road. It had been raining, or was raining at the time of the collision. The plaintiffs contended and sought to prove defendant Williams was speeding and driving too fast for conditions. The jury returned a verdict for defendants and the plaintiffs appeal. Held:

1. The plaintiffs attempted to introduce evidence concerning Williams' driving record, which they contended would prove Columbine Carrier, Inc. was liable as respondeat superior and also for negligently hiring and retaining Williams. This evidence included certified copies of speeding citations, a letter written by Columbine Carrier two months before the collision tending to confirm Columbine knew about Williams' driving record and his license suspension and knew that he falsified his application for employment. Plaintiffs also sought to show Columbine failed to obtain information from Williams' previous employers as required by Section 392.23 of the Federal Motor Safety Regulations. As to all of this, the trial court granted defendant's motion in limine.

The plaintiffs contend the evidence was pertinent to the negligent entrustment or employment claim and that the jury would have arrived at a different verdict if it had been given the benefit of the evidence. No doubt this might be so but, if so, it would have proved its own error. Defendant Columbine Carrier admitted liability as respondeat superior for any causative negligence of defendant driver, Williams. The jury returned a verdict for Williams, which means it found Williams not at fault by a preponderance of the evidence. His negligence or lack of negligence on this occasion could be proved only by the facts of the event, and not by evidence of his prior driving record or of his general character for carelessness or recklessness in driving. Willis v. Hill, 116 Ga.App. 848, 862, 159 S.E.2d 145; rev'd. on other grounds, 224 Ga. 263, 161 S.E.2d 281, reaff'd. 117 Ga.App. 855, 162 S.E.2d 299. Evidence of defendants' similar acts or omissions on other and different occasions is not admissible. Thompson v. Moore, 174 Ga.App. 331, 329 S.E.2d 914, aff'd but rev'd. on other grounds, Moore v. Thompson, 255 Ga. 236, 336 S.E.2d 749; Wright v. Dilbeck, 122 Ga.App. 214 (4), 176 S.E.2d 715; OCGA § 24-2-2. It is not probative of the issue at hand and there is a substantial likelihood that the defendant's criminal record of prior or subsequent offenses may prejudice the jury against him as to the question of liability in the particular case. Thompson v. Moore, supra; Willis v. Hill, supra 116 Ga.App. at 864, 159 S.E.2d 145. Once liability for the act has been found to exist, evidence of similar acts or occurrences, or a bad driving record indicating wilfulness or reckless disregard of consequences may become relevant to punitive damages, in a bifurcated proceeding. Moore v. Thompson, supra; Chupp v. Henderson, 134 Ga.App. 808, 811, 216 S.E.2d 366. But this is a wrongful death action (OCGA § 51-4-5) and the plaintiffs did not seek punitive damages (see Truelove v. Wilson, 159 Ga.App. 906 (2), 285 S.E.2d 556; and so the evidence lost any relevance once Columbine admitted liability as respondeat superior. Thomason v. Harper, 162 Ga.App. 441, 442, 289 S.E.2d 773. The trial court did not err in excluding evidence of Williams' driving record or Columbine's failure to ascertain it, or its actual or constructive knowledge of it or of the fact he had falsified it in his employment application.

2. The plaintiffs/appellants, however, contend the evidence of Williams' driving record and falsification of the same in his application for employment was admissible to impeach Williams' testimony, elicited on cross-examination, that he considered himself a safe driver generally and that he was driving safely on the night in question. Appellants give no argument or citation of authority to this court in support of this enumeration of error; therefore, it is considered abandoned. Brown v. Phillips, 178 Ga.App. 316(2), 342 S.E.2d 786; Wilkie v. State, 153 Ga.App. 609(1), 266 S.E.2d 289. We note, however, that Williams' statement that he considered himself a safe driver generally has no relevance to whether he drove negligently and caused the collision on the night in question; and conversely his statement that he was driving safely on the night in question is not proven to be false (impeached) by any evidence that he had driven unsafely on other occasions.

3. The trial court did not err in refusing to admit certified copies of defendant Williams' criminal record for theft by taking and for theft by receiving stolen property, first offender status. This evidence, in a civil case, when the defendant has not put his character in issue, would tend to be more prejudicial than probative, and the trial court did not err in excluding it.

Evidence of criminal record has been ruled admissible against a defense witness in a criminal case. Warren v. State, 179 Ga.App. 890, 348 S.E.2d 88. In Hightower v. Gen. Motors Corp., 175 Ga.App. 112, 332 S.E.2d 336, we held a first offender guilty plea is admissible to impeach a person in a civil suit which he had instigated. On certiorari, the Supreme Court noted a distinction between the use of such evidence in a civil case and its use in a criminal case, and deliberately refrained even from approving or disapproving Moon v. State, 154 Ga.App. 312(1), 268 S.E.2d 366 where it was held admissible to impeach a defense witness in a criminal case. The Supreme Court expressly declined to reach the question whether "a witness" may be impeached by proof of a conviction for a felony or a crime involving moral turpitude, a proposition based on Giles v. Jones, 169 Ga.App. 882, 315 S.E.2d 440 (impeachment of plaintiff in civil case) and Favors v. State, 234 Ga. 80(3), 214 S.E.2d 645 (use of first offender plea to impeach a State's witness in a criminal trial). The Supreme Court carefully limited its holding as follows: "[W]e hold that a guilty plea as to which a plaintiff in a civil case has been granted first offender treatment is admissible in evidence to disprove and contradict such party's testimony given in the civil case. " (Emphasis supplied.) Hightower v. Gen. Motors Corp., 255 Ga. 349, 352, 338 S.E.2d 426. We think it is significant that in Hightower the evidence was admitted to disprove specific facts testified to by the plaintiff in that civil case which he instigated. Id. p. 351, 338 S.E.2d 426.

In Giles v. Jones, supra, we held as a general principle applying to the admissibility of a criminal record for impeachment: " 'Ordinarily, the issue as to the relevancy and materiality of evidence is for the trial court. Indeed, any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue ... is relevant.' [Cit.] 'When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view they may take of them, in connection with the other facts in evidence, they are such that the jury ought to ... hear them.' [Cit.]" (Emphasis supplied.)

The defendant's criminal record did not tend to "disprove and contradict [the defendant's] testimony" in this civil case as to a specific material fact testified to by defendant. Hightower, 255 Ga. at 351-352, 338 S.E.2d 426, Giles, supra. It tended at best only to impeach the character and credibility of the defendant generally, in this civil suit instigated by another; the fact that defendant had committed theft in the past had no logical bearing on the specific issue of negligence in driving the truck. The trial court did not err in excluding this evidence. See Metropolitan Property, Ins., etc., Co. v. Shepherd, 166 Ga.App. 300, 301, 304 S.E.2d 74.

4. Appellants' enumerations of error 10, 12 and 13 have been considered. They are without any citation of authority for the position of appellants that they were entitled to certain jury charges. We conclude these enumerations either are without merit or, if any of the charges should have been given, we are confident the appellants on new trial will support their entitlement to them by citation of authority and that any errors will not recur.

5. In enumerations 9 and 11, appellants contend the trial court erred in failing to include jury instructions about state and federal rules and regulations as to a motor carrier operation, in its charge on negligence per se--driving while ill or fatigued. Appellants did not enter into evidence any such rules and regulations and neither the trial court nor this court is obliged to take notice of them unless they are adopted pursuant to Georgia statutory authority. See Dix v. State, 156 Ga.App. 868, 275 S.E.2d 807. Appellants do not cite to this court any state motor carrier rules which have adopted any federal motor carrier rules. These enumerations...