Young Men's Christian Ass'n v. Bailey, s. 41321

Decision Date29 October 1965
Docket Number41322,No. 2,Nos. 41321,s. 41321,2
Citation112 Ga.App. 684,146 S.E.2d 324
CourtGeorgia Court of Appeals

Syllabus by the Court

1. (a). In a suit for damages against a charitable institution where it is alleged, for the purpose of showing noncharitable assets, that the defendant has a liability insurance policy insuring against any damages that it may become legally obligated to pay and that allegation is admitted, insurance and the existence of insurance is not an issue in the case.

(b). In these circumstances it is not error to deny a peremptory order requiring defendant to exhibit the policy to plaintiff's counsel either for the purpose of attaching a copy of it to an amendment to the petition or of introducing it into evidence; information as to the name of the company, etc., having been made available to the court for use in qualifying the jury.

2. None of the special grounds of the amended motion for new trial is meritorious.

3. The general grounds of the motion are without merit. $Mrs. Lucille Bailey, mother of Ronald Bailey, a minor, brought suit against the Y.M.C.A. to recover the value of his life, alleging he had drowned in the defendant's swimming pool and that his death resulted from administrative or corporate negligence in the employment and retaining of incompetent servants who were in charge of the pool, and from the negligence of the servants themselves. 1 She alleged that the defendant was a charitable organization and, in order to show a right to proceed against it for the negligence of its servants under the doctrine of respondeat superior, alleged that the defendant owned as a noncharitable asset a public liability insurance policy issued to it by the Globe Indemnity Company of New York, Insuring the defendant against all damages that it might become legally obligated to pay to third persons, such as petitioner, arising out of the ownership, occupancy, maintenance or use of its premises whereon the pool was located.

The defendant answered, denying all allegations as to how the plaintiff's son lost his life, or the cause thereof, all allegations of administrative or corporate negligence, or of negligence on the part of its servants and employees, but admitting that it owned the general liability insurance policy, denied that it had any other noncharitable asset or income, and affirmatively pleaded that (a) the sole cause of the boy's death was his own conduct, and (b) that his death resulted from an accidnet.

Plaintiff served defendant with a notice to produce the insurance policy upon trial of the case, contending that she was entitled to photostat it for attaching to a proposed amendment to the petition, use it in qualifying the jury and introduce it in evidence. Defendant produced the policy, but urged that the plaintiff had no right to inspect it, because it was not needed as an exhibit to the petition, and was not proper evidence in the case; nevertheless tendered the policy to the court and agreed that, if required to do so, would submit it to plaintiff's counsel for inspectio. Plaintiff moved for a peremptory order requiring production and submission of the policy, but this the court denied.

The record is voluminous. Plaintiff's son, a nine-year-old boy alleged to have been a bright, intelligent, obedient child, along with 38 others, some younger and some older, was in the swimming pool at the Y.M.C.A. The boys were under the supervision of a full-time lifeguard and two adult Gra-Y leaders. A short time after the boys entered the pool plaintiff's son was found lying on the bottom of it. He was retrieved and efforts to revive him were made by those in charge as well as the Atlanta Fire Department, but without success. The evidence as to to what caused his death was circumstantial. There was no testimony of anybody seeing the child go down, or of the circumstances of his doing so. There was no autopsy. Dr. Bickerstaff The only doctor testifying, saw him after he was retrieved from the pool and efforts to resuscitate were fruitless. His opinion was that the circumstances strongly indicated drowning, but he testified that there are many causes of asphyxiation other than drowning and that without an autopsy it was imposible to determine with certainty the cause of death. The jury returned a verdict for the defendant and plaintiff filed her motion for new trial upon the general grounds and 26 special grounds. A new trial was granted on special ground 4 only, wherein there was exception to the refusal of the court to enter an order requiring defendant to submit the insurance policy for photostating, for attaching as an exhibit to the petition and for introduction into evidence, and all other grounds of the motion were overruled.

Defendant excepts in the main bill of exceptions to the grant of a new trial on special ground 4, and in her cross bill plaintiff excepts to the denial of a new trial on all other grounds of the motion.

Greene, Neely Buckley & DeRieux, Ferdinand Buckley, James A. Eichelberger, Atlanta, for plaintiff in error.

G. Seals Aiken, W. O. Slate, Atlanta, for defendant in error.


1. The court erred in granting a new trial on special ground 4. In her petition plaintiff alleged that the defendant was a charitable organization. In the light of that (except as to administrative or corporate negligence) it was necessary to allege that it owned noncharitable assets out of which she might expect to satisfy any judgment that might be obtained. Cox v. DeJarnette, 104 Ga.App. 664, 123 S.E.2d 16; Morehouse College v. Russell, 216 Ga. 717, 135 S.E.2d 432. In the absence of that allegation the action could not have been maintained insofar as recovery was sought for the negligence of servants, because of the doctrine of charitable immunity. Butler v. Berry School, 27 Ga.App. 560(1), 109 S.E. 544. But when it appears that there are noncharitable assets a charitable institution may be held for injuries negligently inflicted, the recovery to be satisfied only out of the noncharitable assets or income. Morton v. Savannah Hospital, 148 Ga. 438, 96 S.E. 887. Where the noncharitable asset is a liability insurance policy, that may be pleaded. Cox v. DeJarnette, 104 Ga.App. 664, 123 S.E.2d 16, supra; Morehouse College v. Russell, 219 Ga. 717, 135 S.E.2d 432, supra.

It was sufficiently pleaded when plaintiff alleged that the 'defendant owned and held certain assets and property on May 4, 1955 for noncharitable purposes and among the noncharitable assets and property to which the defendant held title on May 4, 1955, was and is a public liability policy issued by Globe Indemnity Company of New York insuring the defendant for homicide liability for damages to third persons for which the defendant shall become legally obligated to pay third persons, such as your petitioner, arising out of the ownership or occupancy or maintenance or use of the premises occupied by the defendant at 145 Luckie Street in the City of Atlanta, and especially its swimming pool on said premises in which plaintiff's minor son, Ronald Bradley Bailey, was drowned on Wednesday afternoon, May 4, 1955, and all operations necessary or incidental thereto.' To this allegation defendant, in its answer, 'admits that it woned a certain general liability policy issued by Globe Indemnity Company to it, and in effect on May 4, 1955, insuring it for legally imposed liability resulting from injuries to persons on its premises Including death resulting from such injuries.'

With this allegation and its admission plaintiff's right to proceed against the defendant as a charitable institution seeking to recover for the death of her son on account of negligence of the defendant's servants and employees was established. Attaching a copy of the policy by amendment could add nothing in that respect.

Although it was asserted in the notice to produce, and in plaintiff's exceptions, that the policy was desired for use in qualifying the jury there is no exception charging that the jury was not qualified as to the insurer, Globe Indemnity Company, nor has counsel for the plaintiff contended that there was any failure of the court so to qualify the jurors. It would have been neither necessary nor proper to submit the policy to the jurors in qualifying them; they could only have been asked touching their relationship to the company, its stockholders and directors. It affirmatively appears from this special ground of the motion that the court was supplied with the information necessary for qualifying the jurors.

This leaves only the matter of plaintiff's proposal to introduce the policy into evidence. The only legitmate purpose in doing so would have been to establish the truth of the allegation as to the existence of the policy, its ownership by the defendant, and that it insured against any liability of the defendant legally imposed for her son's death,--thus proving the allegation of the existence of noncharitable assets. All of these things were admitted and proof was wholly unnecessary. Code § 81-103; Jester v. Bainbridge State Bank, 4 Ga.App. 469(5), 61 S.E. 926. Indeed, it would have been proper to exclude it. 'It is not error to exclude evidence as to matters about which there is no dispute.' Hendrick v. Daniel, 119 Ga. 358(2), 46 S.E. 438. '[W]here the truth of an allegation of fact in a petition is expressly admitted in the defendant's answer, there is no issue upon that point, and it is entirely unnecessary for the plaintiff to sustain such allegation by evidence,' (Elbert County v. Threlkeld, 21 Ga.App. 663, 94 S.E. 816), for '[w]ithout an issue there is nothing to try.' Sims v. State, 221 Ga. 190, 201, 144 S.E.2d 103, 111. 'It is not error to exclude from the evidence the charter of a party the corporate existence of which is admitted by the opposite...

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