Yancey v. Griffin., 93 Ga. App. 407, 91 S.E.2d 815 (1956)

Status: DECIDED

Docket Number: 35879

Parts: Damages. Before Judge Carpenter. Putnam Superi...

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G. L. Dickens, Jr., Peter J. Rice, contra.R. C. Whitman, Jr., Whitman & Whitman, for plaintiff in error in case No. 35885.R. C. Whitman, Jr., Whitman & Whitman, contra.G. L. Dickens, Jr., Peter J. Rice, for plaintiff in error in case No. 35879.

1. Under rules pronounced in Western Union Telegraph Co. v. Griffith, 87 Ga. App. 596 (74 S. E. 2d 897); Orr v. Dawson Telephone Co., 35 Ga. App. 560 (133 S. E. 924).

Justice Lumpkin in Wooten & Co. v. Nall, 18 Ga. 609 (7) stated the rule broadly: "Under the laws of this State, in all actions where two or more defendants are joined, and it shall be made to appear, on the trial, that a portion of them are not liable, and ought not to have been joined in the action, the suit shall not abate or be quashed on that account; but the action may thereafter proceed against the other defendant or defendants." This was a case ex contractu, but in the body of the opinion he discussed the principles that governed the right to recover of defendants liable in a joint and several action in which some of the defendants are shown not to be liable.

We find no error in overruling the first two special grounds of the motion for a new trial and the motion in arrest of the judgment.

4. The third ground of the motion for a new trial excepts to the judge giving the language of Code 68-317 in charge to the jury.

The first sentence of the Code section reads: "All vehicles using the public roads and highways of the State of Georgia at night shall be equipped with front and rear reflectors, in addition to the lights required by section 68-316 to serve as a warning signal to drivers of approaching vehicles."

The second sentence of the section reads: "The Department of Public Safety is hereby vested with the authority to determine and specify the type of reflectors to be placed on vehicles; to approve reflectors meeting the minimum requirements, and to make such other reasonable rules and regulations needed for the use of said reflectors."

The second sentence authorizes the Department of Public Safety to prescribe the minimum requirements of the reflectors. The insistence is that since the type of reflectors to be used was never designated by the Department of Public Safety, the entire Code section never became an operative or effective statute of the State, and hence the charge was not adapted to the issues of the case.

We have given careful consideration to this very interesting phase of the case, and have reached the conclusion that the first sentence of the Code section makes the act of having no reflectors a violation of the law, especially when considered in connection with Code 68-9920. "Violation of Acts 1939, p. 295, as misdemeanor; punishment; duty of arresting officers.--Any person violating the provisions of Acts 'of 1939, p. 295, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished as for a misdemeanor, or as otherwise provided in this said law. It is the duty of every arresting officer both county, municipal, and State, to enforce the provisions of this said law."

Consequently, there being some evidence that the truck was not equipped with reflectors, the first sentence of Code 68-317 was adjusted to the issues of the case and was properly given in charge to the jury. The remainder of the Code section was not applicable to any issue in the case, and it would have been better to have omitted reference to that portion of the statute from the charge, and reading it could hardly have had the effect of confusing the jury and was certainly favorable to the defendants. If it could have engendered any erroneous conception, it would have been that unless the plaintiff proved the Department of Public Safety had adopted some regulation as to the size and shape of the reflectors to be used, none would be required. Since there was no such proof this would certainly have enured to the defendants' interest.

The general rule is well stated in Pippen v. State, 205 Ga. 316 (9) (53 S. E. 2d 482): "Though it is better for him not to do so, it is not usually cause for a new trial that the judge gives in charge to the jury an entire statutory or Code provision, a part of which is applicable and a part inapplicable to the case under consideration. Thompson v. Mitchell, 192 Ga. 750 (2) [16 S E. 2d 540]."

There are many similar holdings, prominent among which are, Williams v. McCranie, 27 Ga. App. 693 (109 S. E. 699); Eagle & Phenix Mills v. Herron, 119 Ga. 389 (3) (46 S. E. 405); Floyd v. Boss, 174 Ga. 544 (163 S. E. 606).

5. This brings us to the consideration of the fourth and final ground of the amended motion. This ground excepts to the court, after a verdict had been returned for the plaintiff generally, in which no defendant was mentioned, remanding the case to the consideration of the jury with the instructions that they retire and specify in their verdict the name or names of the defendant or defendants against whom it was found; whereupon the jury returned the verdict so amended as to find against the defendant Yancey alone.

The specific assignments of error contained in this ground were: "(1) This was a joint suit in tort against M. C. Yancey and George Anders Ross, and no valid and legal verdict could be rendered against M. C. Yancey without a like verdict being rendered against George Anders Ross. (2) Because the court was without authority to instruct the jury to change its original verdict by finding a verdict against M. C. Yancey and in favor of George Anders Ross."

It will be observed that the first of these assignments of error raises precisely the same question as the first two special grounds of the motion for new trial and the motion in arrest of judgment. It follows that we have in effect disposed of this assignment of error by holding that the liability of the defendants was joint and several, and that there was evidence that Yancey was guilty of negligence, not participated in by Ross, which of itself could have afforded the sole proximate cause of the collision resulting in the death of the plaintiff's husband. Further elaboration we deem unnecessary.

The second assignment of error that the charge was error because it was tantamount to instructing the jury to find against the defendant Yancey does not show error. This is true because while conscientious and respective counsel so interpret the charge, we do not think that it is susceptible of that construction. The instructions given the jury were not that they find against either of the defendants, but simply that they so amend the verdict returned by them to show what defendant or defendants it was returned against.

The point is not raised as to whether the remanding of the case to the jury was error because the verdict as originally returned amounted to a general verdict in the plaintiff's favor. Frank E. Wood Co. v. Colson, 43 Ga. App. 265 (158 S. E. 533); Houston v. The Ladies Union Branch Association, 87 Ga. 203 (3) (13 S. E. 634).

Nor have we before us the question of the judge's discretion to remand the case to the jury that the verdict be made more certain. On that subject, however, the cases of August v. State, 20 Ga. App. 168, 169 (6) (92 S. E. 956); Cook v. State, 26 Ga. 593 (5); Mangham v. State, 87 Ga. 549 (13 S. E. 558) are of interest. Neither are we privileged to pass upon the question as to whether, if it should appear that the judge erred in resubmitting the case to the jury, a new trial would result or the judgment of reversal would carry with it instructions that the superstructure of the amendment be removed and the verdict as originally returned not be disturbed.

We considered it well to refer to those phases of the case and the principles applicable to them to avoid the appearance of simply having overlooked or being unmindful of them.