Williams v. Calhoun

• Decision Date: 08 July 1985
• Docket Number: No. 70134,70134
• Citation: 333 S.E.2d 408,175 Ga.App. 332
• Parties: WILLIAMS v. CALHOUN.
• Court: Georgia Court of Appeals

Page 408

333 S.E.2d 408

175 Ga.App. 332

WILLIAMS v. CALHOUN.

No. 70134.

Court of Appeals of Georgia.

July 8, 1985.

Charles W. Brannon, Jr., Savannah, for appellant.

Marshall R. Wood, Savannah, for appellee.

BEASLEY, Judge.

Mildred Calhoun brought an action against Henry Williams for damages resulting from an automobile collision which occurred at the intersection of Paulsen Street and 60th Street in Savannah. The vehicles being driven by the two parties were proceeding towards the intersection at right angles. The defendant's approach on 60th Street was governed by a stop sign, while the plaintiff who had the right-of-way on Paulsen Street entered the intersection and began to make a left turn onto 60th Street. According to the allegations of the complaint, the defendant's vehicle did not stop and as a result collided with that of the plaintiff. It was also alleged that plaintiff's medical expenses exceeded $500 and she sought recovery of $75,000 for her injuries including pain and suffering.

The defendant's answer denied the material allegations of the complaint and alleged that plaintiff's injuries were the result of an accident. As a part of discovery, plaintiff formally requested the defendant to admit: 1) "that the Defendant failed to stop at the stop sign for 60th Street traffic at Paulsen Street, while he was driving his 1982 Volvo in an easterly direction on 60th Street, on May 18, 1983, and because he failed to stop for the stop sign, he drove his vehicle into the intersection and into the vehicle driven by the Plaintiff;" 2) "that the Defendant pleaded guilty to traffic charge of failure to yield right-of-way in Recorder's Court of Chatham County ..." Defendant failed to respond, and plaintiff filed a motion for summary judgment based on the admissions and her affidavit. In response, defendant filed his own affidavit which recited that he was driving the vehicle which collided with plaintiff's automobile; that prior to the collision it had been raining and the street surface was wet and slippery; that his vehicle approached the intersection at a speed of 25 m.p.h.; that he knew the traffic sign was there and saw it; that he also saw plaintiff's vehicle; that he applied the brakes to his automobile but it did not stop and instead began to skid; that it skidded into plaintiff's automobile; and that in his opinion his vehicle did not stop because the street surface was wet.

After briefs and a hearing, the trial court entered an order which, after reciting the basic facts, predicated a finding for plaintiff on the first of the two requests for admission, pointing out that defendant failed to respond or to move to withdraw the admissions, and thereby admitted those facts. The court found that defendant admitted that he "failed to stop at the stop sign." The court concluded: "This is negligence per se in that it violates OCGA § 40-6-72(b). Johnson v. McAfee, 151 Ga.App. 774, 261 S.E.2d 708 (1979). As we emphasized, the admission goes on to establish that the collision complained of by plaintiff was caused by this failure to stop. Thus we have a violation by defendant of his duty, owed to plaintiff, to stop at the intersection, which caused plaintiff's damages." (Emphasis in original.) Partial summary judgment on the issue of liability was granted, and defendant appealed.

It is unquestioned that: "If a party served with a request for admission does not serve an answer or objection and does not move for an extension of time or to withdraw the admissions resulting from a failure to answer, the matter stands admitted." Albitus v. Farmers & Merchants Bank, 159 Ga.App. 406, 407, 283 S.E.2d 632 (1981). "In form and substance an admission under [OCGA § 9-11-36] is comparable to an admission in pleadings or stipulation of facts and as such is generally regarded as a judicial admission rather than evidentiary admission of a party." Therefore, " '[a]ny matter admitted under this [Code] section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.' " Id., p. 407, 283 S.E.2d 632.

Thus, defendant will not be permitted to controvert those admissions which are contained in requests 1 and 2. However, this is not determinative because the issue is whether defendant conclusively admitted a failure to exercise "... that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances," OCGA § 51-1-2, which was the proximate cause of the collision.

Defendant admitted he did not stop in obedience to the stop sign. He also admitted he pleaded guilty to a charge of failure to yield the right-of-way. An admission by plea of guilty is only a circumstance to be considered along with other evidence by the jury. Locklear v. Morgan, 129 Ga.App. 763, 768(9), 201 S.E.2d 163 (1973). Kickasola v. Jim Wallace Oil Co., 144 Ga.App. 758, 760(4), 242 S.E.2d 483 (1978). The plaintiff has established negligence per se in the violation of a statute, which is a prima facie showing of negligence. This means that the burden then shifts to the defendant to show that the violation was unintentional and in the exercise of ordinary care. Cruse v. Taylor, 89 Ga.App. 611, 615, 80 S.E.2d 704 (1954); Johnson v. McAfee, 151 Ga.App. 774(2), 261 S.E.2d 708, supra. Otherwise it will be conclusive.

The facts established that the vehicle failed to stop at the traffic sign and that the continued movement was the cause of the collision and resulting injury to plaintiff. This the trial court correctly found, but it erred in finding that this determined the issue of liability as a matter of law. Defendant...