Jones Et Al. v. Cloud, by Next Friend., 119 Ga. App. 697, 168 S.E.2d 598 (1969)
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S. Gus Jones, for appellee.Anderson, Walker & Reichert, Albert P. Reichert, Mallory C. Atkinson, Jr., for appellants.
1. There was sufficient evidence from which the jury was authorized to find that the owner of the truck entrusted it to one whom be knew to be given to the excessive use of alcoholic beverages and who might drive the truck while under its influence.
There was likewise sufficient evidence from which the jury was authorized to find that the driver of either or of both vehicles was negligent on the occasion in question.
2. While evidence of prior convictions of a party for drunkenness are not generally admissible in a subsequent negligence action, it is admissible when the action is brought on the theory of negligent entrustment when actual knowledge of those instances on the part of the entrustor appears, or the jury is authorized to find that he had actual knowledge thereof from the circumstances proven, for the limited purpose of showing that the person to whom the vehicle was entrusted was not, for that reason, a competent driver.
3. Under the facts appearing it was error to refuse to give a timely and proper request for a charge on the duty of the plaintiff to exercise ordinary care for his own safety and to avoid injury to himself which might result from the negligence of the driver of another vehicle with which he collided.
4. Enumerations of error not argued in appellant's brief are deemed to be abandoned.
5. When a juror responds to a voir dire question and by his answer indicates that he may be so prejudiced by certain anticipated evidence that he cannot render a fair verdict as to the cause of the accident in question, he should be excused for cause.
Carey J. Cloud, by his father as next friend, brought suit against Edward Jones, Jr. and Lewis E. Smith for personal injuries sustained in an automobile collision on March 25, 1967. The collision occurred when Jones, driving a pick-up truck while intoxicated, emerged from a side street and attempted to cross Emery Highway in Macon where he was struck by an oncoming Volkswagen bus operated by Cloud. Liability was sought to be imposed upon Smith, Jones' employer, for negligently entrusting a vehicle to Jones knowing that he was an incompetent driver by virtue of his habit of excessive use of intoxicants. No question of respondeat superior was involved. The jury returned a verdict against both defendants, and they appeal from the judgment entered thereon, enumerating several matters as error including the overruling of their respective motions for new trial.
1. In enumeration of errors 1 through 4 defendant Smith complains of the trial court's failure at various stages of the litigation to grant judgment in his favor as a matter of law, contending that the evidence was insufficient to show that he had actual knowledge of Jones' incompetency.
(a) "It is well established that a person. who entrusts a motor vehicle to an incompetent driver who is likely to cause injury to others through its use is liable for any damages resulting therefrom, and this principle has generally been applied to cases where one entrusts a vehicle to another who he knows, Or should know, is intoxicated or likely to become so while driving due to the fact that he is an excessive user of intoxicants." Annot., "Liability Based on Entrusting Automobile to One Who Is Intoxicated or Known to Be Excessive User of Intoxicants," 19 ALR3d 1175, 1179 (1968). Accord: 8 AmJur2d 130, Automobiles and Highway Traffic, 576.
In this jurisdiction, "[k]nowledge of the driver's incompetency is an essential element of the rule which holds an owner liable for furnishing his automobile to an incompetent driver and such knowledge must be actual rather than constructive. Hines v. Bell,
The evidence adduced as to Smith's knowledge of Jones' excessive use of intoxicants consists of the testimony of Jones and Smith. Jones had been employed by Smith or the companies he owned for approximately six years, and approximately six months before the collision Smith had entrusted the truck to Jones to go back and forth to work and for personal missions. Smith testified that he knew Jones drank intoxicating beverages, but he did not know that he ever drove the truck while intoxicated. He specifically instructed Jones not to drive it while drinking and discussed this matter with him on two or more occasions. As to Jones' prior police record, Smith testified that he had never helped to get him out of jail on charges of being drunk or driving under the influence, the only occasion on which he had participated being when Jones' wife had him locked up on a disorderly conduct charge.
Jones testified that at the time the truck was loaned to him Smith didn't know whether he had a drinking problem or not; that Smith didn't know he drove and drank, but he did know he drank because that's the reason he asked him not to drive the truck while he was drinking; that he had the general use of the truck but it was understood that it was not to be used for "pleasure use, honky-tonkying, or drinking in it."
Jones further testified: "Is it true that on December 25, 1965, that you were arrested for drunk? A. On December 25? Q. Yes, 1964. A. I couldn't recall the dates. I've been locked up on occasions for being drunk. Q. About 17 times? A. Somewhere--[Colloquy] Did you have a case of DUI against you for driving under the influence in 1957? A. 1957? I think I did, sir. Q. And isn't it true, Edward, that you drove a vehicle on numerous occasions while you were drinking but were not caught by any police officers prior to this collision? A. Say isn't it true? Q. Yes. Isn't it true? A. Well, I was caught twice for DUI. Q. And did Mr. Smith ever come get you out of jail when you were in jail on any of these charges? While you were working for him? A. On DUI? No, sir. Q. The others he did. A. Yes, Sir."
After a colloquy and recess, Jones repudiated his statement that Smith got him out of jail on the drunk charges and testified that he thought Smith only got him out on one occasion on a disorderly conduct charge. Thus appears a contradiction in Jones' testimony as to a critical matter, for we are of the opinion that without Jones' testimony that Smith got him out of jail some seventeen times for drunkenness, the evidence would be insufficient to show Smith's actual knowledge of Jones' excessive use of intoxicants. Marques v. Ross,
Jones' prior testimony stands, however, and the jurors were entitled to consider it; not, however, because of the rule that the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, inasmuch as Jones was called by the plaintiff for cross examination when the testimony was given. Furthermore, the rule requiring the construction of a party's testimony against him does not apply as to Smith because as to his liability Jones was a witness, not a party. Cf. Durden v. Maddox,
There being sufficient evidence which the jury could believe to show Smith's actual knowledge of Jones' excessive use of intoxicants, there was no error in overruling Smith's motions for directed verdict and for judgment n.o.v.
(b) There is no merit in the contention that Smith could not be held for negligent entrustment for the reason that one of his corporations, rather than he, was the legal owner of the truck loaned to Jones. "The person who may be held liable for negligent entrusting of a vehicle to another who was intoxicated or known as a habitual drunkard is ordinarily the owner of the vehicle. Such liability, however, can also be imposed upon any other person who has control over the use of the vehicle and is negligent in entrusting it to another." Annot., 19 ALR3d 1175, 1180, supra. Since there is evidence that Smith had the right to permit and prohibit the use of the truck, he could be held under the theory of negligent entrustment regardless of whether he was the legal owner.
(c) The overruling of Smith's motion for summary judgment as to his liability for negligent entrustment, if error, was harmless since the case proceeded to trial and the evidence authorized the verdict against him on this theory. Hill v. Willis,
Enumerations of error 1 through 4 are without merit.
2. Enumerations of error 11 through 13 complain that the court erred in allowing plaintiff's counsel to question Jones about his previous police record. The enumerations are based upon an objection made in the trial court to questions pertaining to instances of drunkenness not related to the occasion in question.
While it is well established that evidence as to prior occasions would not be admissible to prove negligence as to Jones on the occasion in question (see cases collected in Willis v. Hill,
Enumerations of error 11 through 13 are without merit.
3. Enumerations of error 5, 7, 8 and 9 complain of the trial court's failure to charge the doctrines of contributory negligence, comparative negligence and avoidance (Code 105-603) to which timely exception was taken at the trial. In their responses to the complaint both defendants alleged: "Third Defense: In and about the premises the plaintiff, Carey J. Cloud, was not in the exercise of ordinary care and, by the exercise of ordinary care could have avoided any injury or damage to himself, and on account thereof, plaintiff is not entitled to recover against this defendant. Fourth Defense: The negligence of the plaintiff, Carey J. Cloud, equalled or preponderated over any act or omission on the part of this defendant in producing or bringing about the occurrence complained of, and on account thereof, plaintiff is not entitled to recover against this defendant."
Defendants requested that the court charge, "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." Code 105-603. Also requested was an excerpt from Wright v. Concrete Co.,
(a) Defendants did not request, however, that the court charge the jury in accordance with their pleaded defenses that the plaintiff could be barred from recovery under the comparative negligence doctrine, and it has been held in varying circumstances that if such a charge is desired, it should be properly and timely requested of the trial judge before error can be shown. [1] Wrightsville & Tennille R. Co. v. Gornto,
Since we conclude in any event that it was error for the trial court to fail to charge Code 105-603 on the doctrine of avoidance as requested, we make no ruling on enumerations of error 7 and 8, complaining of the trial court's failure to charge that plaintiff could be barred from recovery under the doctrine of comparative negligence. If on a subsequent trial the evidence so authorizes, defendants may make appropriate requests to charge on comparative negligence under 17 (b) of the Appellate Practice Act (Code Ann. 70-207 (b)) and thus avoid any collision with the holdings in Wrightsville & Tennille R. Co. v. Gornto,
In civil cases each party is entitled to a full panel of twenty-four competent and impartial jurors from which to strike a jury. [3] Code 59-704. A challenge for favor is permissible. Code Ann. 59-705. "The defendant had the right to a panel of twenty-four from which to strike--all twenty-four impartial men.
The jurors, it would appear, were disqualified. As to what was required to be done by a party desiring to have them removed from the panel, see Atlantic C. L. R. Co. v. Bunn,
6. For the reasons stated in Division 3, enumeration of error 17, complaining of the denial of the respective motions for new trial, is meritorious. Since a new trial must be had and the evidence may not be the same as that now before us, we make no ruling on enumerations of error 14, 15 and 16, complaining that there was no evidence to authorize the giving of various charges on damages. City of Jefferson v. Maddox,
Judgments reversed. Bell, P. J., and Deen, J., concur.
1969
Notes:
1. The same rule applies as to a charge on reducing or mitigating the damages under the comparative negligence doctrine. See, e.g., Tucker v. Central of Ga. R. Co.,
2. Note that comparative negligence is no longer a matter which must be affirmatively pleaded in response to a pleading under CPA 8 (c) (Code Ann. 81A-108 (c)). Ga. L. 1967, pp. 226, 230.
3. For a history of jury trials in Georgia, see DeLamar v. Dollar,
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This document cites
- Supreme Court of Georgia - FURMAN v. THE STATE., 225 Ga. 253, 167 S.E.2.d 628 (1969)
- Supreme Court of Georgia - HILL v. WILLIS et al., 224 Ga. 263, 161 S.E.2.d 281 (1968)
- Supreme Court of Georgia - TALLEY v. SUN FINANCE COMPANY., 223 Ga. 419, 156 S.E.2.d 55 (1967)
- Georgia Court Of Appeals - American Casualty Company v. Seckinger., 108 Ga. App. 262, 132 S.E.2d 794 (1963)
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