White v. Cline

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN
• Citation: White v. Cline, 330 S.E.2d 386, 174 Ga.App. 448 (Ga. App. 1985)
• Decision Date: 02 April 1985
• Docket Number: No. 69723,69723
• Parties: WHITE v. CLINE et al.

Page 386

330 S.E.2d 386

174 Ga.App. 448

WHITE v. CLINE et al.

No. 69723.

Court of Appeals of Georgia.

April 2, 1985.

R. Stephen Tingle, Frank M. Gleason, Rossville, John W. Davis, Jr., Brunswick, for appellant.

Jon Bolling Wood, LaFayette, Robert J. Harriss, Rossville, L. Hugh Kemp, Leslie Waycaster, Dalton, for appellees.

DEEN, Presiding Judge.

Appellee Melanie Cline was a guest passenger in the Oldsmobile Cutlass driven by Carla Middleton, defendant/appellee in the cross-claim filed by appellant White, who was named as defendant in the action originally filed by appellee Cline. Ms. Middleton was attempting to exit from a restaurant parking lot and pull into the center turn lane preparatory to turning left, or north, on the highway on which the restaurant faced. Her Cutlass was struck on the left rear fender by a Cadillac proceeding southward in the inside or "fast" southbound lane. The blow propelled the Cutlass into the northbound inside or "fast" lane, where it stalled and remained stationary, facing northward. Before the engine could be restarted, appellant White, accelerating from a traffic light two blocks to the south, struck the rear of the Cutlass straight on and knocked the latter forward to a position athwart the two northbound lanes. Ms. Cline sustained a dislocated hip; Ms. Middleton and a third occupant of the Cutlass suffered minor injuries, as did appellant White. The Oldsmobile was "totaled," and the White truck, which its owner estimated as having had a value of $2,500-$3,000 immediately prior to the collision, was sold for salvage value.

The accident occurred September 1, 1982, and the following January Ms. Cline brought an action against appellant and Mrs. Gentry, driver of the Cadillac, as joint and several tortfeasors. She sought $150,000 in damages for pain and suffering and $50,000 for diminished earning capacity. White answered, denying liability, and filed a cross-claim against Middleton, alleging that her negligence was the sole and proximate cause of the injuries and seeking $3,000 in property damage. He also moved to add Middleton as a party defendant, which motion was granted. In her answer Ms. Middleton denied liability and alleged that Ms. Cline's injuries resulted from the negligence of White and Gentry. Ms. Cline subsequently asserted a claim against Ms. Middleton. Upon learning that an eyewitness had seen aluminum cans, including beer cans, in the back of White's pickup truck, Ms. Cline moved to amend the pretrial order so as to add a negligence count to the effect that White was operating a vehicle while under the influence of alcohol. This motion was subsequently abandoned, and counsel agreed that this count would not be pursued at trial.

A Walker County jury entered verdicts in favor of Ms. Cline, Ms. Middleton, and Mrs. Gentry and against Mr. White. White's counsel moved for judgment notwithstanding the verdict, and the court denied the motion. On appeal White enumerates six errors.

1. Appellant's enumeration regarding the court's permitting only one of his two attorneys (one retained by his insurer and the other his private attorney) to participate in the closing argument is patently without merit. OCGA § 9-10-182 expressly prohibits the procedure advocated by appellant: "Not more than two counsel for each side shall be permitted to argue any case, except by express leave of the court; and in no case shall more than one counsel be heard in conclusion." (Emphasis supplied.) Heard, Leverette & Adams v. Stone, 167 Ga.App. 113, 306 S.E.2d 72 (1983), on which appellant principally relies, is distinguishable on its facts from the case at bar and does not stand for the proposition for which it is cited. In that case two attorneys from the firm representing a single plaintiff were present at the trial. A junior member of the firm conducted the early phases of the trial, and a senior member had planned to present the closing argument. The court refused to permit the senior attorney to do this but required the junior attorney to present the closing argument. This court reversed. In Heard, had the senior attorney been allowed to present the closing argument, his participation would in any case have come within the permissible "[n]ot more than two ... for each side." Moreover, it was only one of the two attorneys in Heard--not both of them, as in the instant case--who wished to participate in the closing argument.

2, 3. Examination of the trial transcript reveals that, under the facts of the case sub judice, the trial court was correct both in giving a jury instruction to the effect that following too closely constituted negligence per se (OCGA § 40-6-49), and in refusing to instruct the jury on legal accident. Whether or not appellant was following too closely when he struck the Middleton vehicle was clearly a jury question. Lynch v. Broom, 158 Ga.App. 52, 279 S.E.2d 302 (1981); Malcom v. Malcolm, 112 Ga.App. 151, 144 S.E.2d 188 (1965). It is well settled that violation of a statute, including those regulating traffic, is negligence per se. See Wallace v. Yarbrough, 155 Ga.App. 184, 270 S.E.2d 357 (1980); Platt v. Southern Photo Material Co., 4 Ga.App. 159, 60 S.E. 1068 (1908). As to the propriety of a jury instruction on legal accident, this court's decision in Chadwick v. Miller, 169 Ga.App. 338, 312 S.E.2d 835 (1983), sets forth a definition of legal accident which clearly excludes fact situations such as that in the instant case. An instruction on legal accident would have been improper under the facts of the case at bar, and these two enumerations are without merit.

4. Appellant assigns as error the trial court's denial of his motion for mistrial on the basis that the issue of intoxication had improperly been presented to the jury. Portions of the deposition of a witness who was the first person to reach White's truck and also the first, or one of the first, to reach the Middleton automobile, were read to the...