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HENDERSON et al. v. HENDERSON.
36044.
Tort; injuries to guest in automobile. Before Judge Jones. Albany City Court. November 10, 1955.
TOWNSEND, J.
1. In a civil action instituted for damages on grounds of negligence for the violation of a penal statute admissions by the defendant tending to show guilt whether made in or out of court, are competent evidence as such. The reason that such evidence is admissible is not because a plea of guilty in a court has any particular sanctity on the trial of a civil action, but only because such plea constitutes an admission that the defendant was at fault.
2. The assignment of error based on the discussion by counsel for the plaintiff of the facts of another reported case to the court in the presence of the jury is insufficient to authorize reversal for the reasons set forth in the corresponding division of the opinion.
3. The verdict is supported by the evidence, and, having the approval of the trial court, will not be reversed by this court on the general grounds of the motion for a new trial.
Mrs. Elizabeth M. Henderson brought an action for damages against her son, Miles J. Henderson, as owner of a certain automobile, and against her daughter-in-law as driver of the automobile. The plaintiff was riding in the automobile as the guest of her daughter-in-law when the automobile collided with another automobile, driven by a third person, at a named intersection, causing the plaintiff enumerated personal injuries. In her petition, as finally amended, the plaintiff charges that her injuries were proximately caused by the gross negligence of her daughterin-law, which consisted of the following acts:
"(1) In that the said driver [Mrs. Mabel L. Henderson] blindly drove into an intersecting public road and highway, as aforesaid, not only without maintaining a lookout along the street and highway ahead of the vehicle, but looked to the left as she entered and proceeded beyond the center of said intersection, and never did look to the right, and struck said 1951 Chevrolet coach which was proceeding from the right, and had the right of way at said intersecting highway, and [she] never did see said automobile approaching from her right, and which had already entered the intersection first, and approaching on a clear day, and with the view of the driver [Mrs. Mabel L. Henderson] of said automobile obstructed by reason of trees growing along and adjacent to said highway on her right-hand side.
"(2) In driving said automobile while approaching and entering said intersection at a speed of approximately thirty-five (35) miles per hour, and without keeping a sharp lookout ahead and to the right of the said obstructed intersection for approaching traffic, the view of the said driver being obstructed by reason of dense trees on her right-hand side of the said highway at said intersection, which speed, under such circumstances, was unreasonable and imprudent, having a regard to the potential hazards then existing, in violation of Code Section 68-1626 . . . which plaintiff alleges to be negligence per se and gross negligence.
"(4) In that the driver of said automobile in which plaintiff was riding failed to keep a lookout ahead and exercise slight care, and discover said automobile approaching from the right, and apply the brakes of said automobile in which plaintiff was riding as an invited guest, and thereby avoid the injuries and damages to plaintiff . . . but blindly drove into an obstructed intersection as aforesaid.
"5. In that the driver of said automobile in which plaintiff was riding as an invited and gratuitous guest took her eyes off the highway ahead and to the right of said intersection, and did not look to the right of said intersection, but looked to the left of said intersection, the direction in which the said driver of said automobile intended to turn, during the entire time she approached said intersection, and after she entered said intersection, and until the time of said collision, which collision was beyond the center of said intersection, and thereby caused the injuries and damages to plaintiff by reason of said gross negligence of said defendant. Plaintiff alleges in this connection that there is a curve at said intersection by reason of said county roads intersecting at an angle of about forty-five (45) degrees, and the said driver of said automobile, traveling at the rate of approximately thirty-five (35) miles per hour, entered said curve in the road and intersection with which she was familiar, and had traveled the same on many occasions, and which was obstructed, as aforesaid, and she did not see the automobile approaching from her right, on a clear day, and caused her head to turn to the left for at least ten (10) seconds, and caused the injuries complained of to her invited guest riding beside her on the front seat of said car as aforesaid.
"(6) Plaintiff alleges that the driver of said automobile was familiar with said highway and said intersection, and had traveled the same on many occasions, and as she entered said intersection blindly was utterly indifferent to the duty she owed her invited guest and utterly forgetful of her safety as aforesaid.
"(7) Plaintiff alleges that said defendant not only did not have said automobile under immediate control, but had no control of said automobile whatsoever, and made no effort to control the same in said intersection in any way before said automobile collided with the vehicle approaching from the right, which had the right of way, and avoid injuring plaintiff."
Upon the trial of the case the jury returned the verdict for the plaintiff in the amount of $10,000. The defendants' motion for a new trial, based upon the usual general grounds and 3 special grounds (numbered 4-6), was denied, and they assigned error upon that judgment. Special ground 1 (numbered 4) of the motion for a new trial, complaining of the illegal admission of certain evidenced is substantially as follows:
Whereupon, counsel for the defendants asked that the jury be excused from the courtroom and after the jury had retired stated: "We have no objection to this investigator's accident report except insofar as it shows an arrest of Mrs. Mable L. Henderson for a failure to grant the right of way, which is highly prejudicial to the defendants."
Whereupon, counsel for the plaintiff stated: "I will prove that she pled guilty to the violation of the law."
Counsel for the defendants then stated: "The law is that where a plea of guilty, if she pled guilty, has been entered, the plea itself would be the highest and best evidence." At this point, counsel for the plaintiff, while the jury was still retired, put the defendant, Mrs. Henderson, on the stand and elicited from her the following testimony: "Q. Mrs. Henderson, did you plead guilty to failing to yield the right of way and pay a fine in this case? A. I paid a fine. Q. Why did you pay a fine--were you guilty or not guilty? A. I guess I was guilty if I paid it."
Counsel for the defendant then propounded the following questions and Mrs. Henderson, the defendant, gave the following answers: "Q. Did you pay the fine yourself? A. My husband paid it. Q. Were you there? A. No, sir. Q. Did you go before any judge or officer authorized to accept a plea and plead guilty? A. No, just before the State patrolman. Q. You didn't go before any other officer? A. No, just the State Patrol."
Counsel for the plaintiff thereupon put the defendant, Miles J. Henderson, on the stand and he testified as follows: "Q. Mr. Henderson, did you plead guilty for your wife in this case? A. Yes, sir, I pled guilty. Q. Were you authorized to do it? A. Yes, sir."
Q. She didn't go before any judge? A. No, sir. Q. She didn't authorize you to go before any judge and plead guilty, did she? A. No, she didn't authorize me to go before any judge."
Counsel for the plaintiff examined this witness who testified as follows: "Q. She knew before you went there you were going to pay a fine? A. Yes, sir, she knew it--I paid it with her money. Q. You paid it with her money? A. Yes sir."
Counsel for the defendant stated: "Your honor certainly recognizes that there has been no plea of guilty and the document is not admissible and we object to it."
Counsel for the plaintiff then stated: "We are not offering it as a plea. We are offering it as an admission."
Whereupon, the court stated: "I am going to let that go in as an admission. The law is this: If there had been a trial and she denied she was guilty but they found her guilty, you couldn't use that, but if she admitted it, you could use it."
Counsel for the defendants further stated: "But there has been no plea of guilty, Your Honor. She has been before no judge or anybody else and pled guilty. Does Your Honor hold there has been a plea of guilty?"
The court replied: "You can't take a plea in the absence of the defendant but I will admit that simply as an admission."
Counsel for the defendants further stated: "We object to the evidence on the ground that it is irrelevant, immaterial and highly prejudicial to the interest of this defendant; on the further ground that the evidence conclusively shows that there has been no plea of guilty before any judicial officer, or anyone else for that matter, on the further ground that the highest and best evidence would be an authenticated copy of the records of the court of the plea she entered, if she did enter a plea, and on the further ground that her husband had no authority to enter a plea for her."
The court then stated: "I think that substantive fact is admissible."
Counsel for the defendants further stated: "Your Honor overrules my objection to exclude the evidence?"
The court stated: "Yes, I will let it in."
The jury returned to the courtroom and counsel for the plaintiff stated that he was recalling Mrs. Mable L. Henderson, as an opposite party, under Code 38-1801, purely for the purpose of cross-examination, at which time counsel for the defendants stated: "We reiterate the objection made when this witness was first called and ask for a ruling."
The court thereupon overruled the objection.
Counsel for the plaintiff then propounded the following questions to the witness: "Q. Mrs. Henderson, I will ask you if you gave your husband some money to plead guilty for you to the violation of a criminal statute and to pay a fine?"
At this point counsel for the defendants made the following objection: "[I] object to the question on the ground that there has been no evidence as to any plea of guilty and such testimony would not be admissible; [I object] on the further ground that it is irrelevant, immaterial, and highly prejudicial to this defendant; [I object] on the further ground that the highest and best evidence of such plea, if one were made, would be an authenticated copy of the records of the court in which such plea was entered; [I object] on the further ground that there is no evidence in this case that her husband was ever authorized to enter any such plea for her."
After counsel for the defendant made this objection, counsel for the plaintiff stated: "I am proving my authority by her. I am proving that she gave the money to him for that purpose, but I am offering it purely as an admission in this transaction, and that is the purpose for which it is offered."
The court overruled the objection and counsel for the plaintiff asked the witness: "Q. Now did you give your husband yourself any money for the purpose of paying a fine for the violation of a criminal statute for your conduct on this occasion? A. Yes, sir. Q. How much was it? A. Seems like it was thirty something dollars. Q. What did you tell him about it? A. I told him to go pay that fine off. Q. For what? A. For reckless driving--that's what they charged me with."
Counsel for the defendants urged the following objection: "[I object] to the last two questions and answers and move to strike the testimony on the ground that it is irrelevant and immaterial and was injected in the case solely to prejudice the minds of this jury; [I object] on the further ground that the highest and best evidence of any plea of guilty would be an authenticated copy of the record from the court or judicial officer before whom such plea was entered; [I object] on the further ground that such admissions are not admissible where the party herself testified that she appeared before no judicial officer whatsoever but merely told a State Patrolman she failed to yield the right of way."
The court overruled the objection, and counsel for the plaintiff stated that he would call the defendant, Miles J. Henderson, as an opposite party, under Code 38-1801, for cross-examination. This witness testified as follows: "Q. Mr. Henderson, I will ask you if you paid any fine for your wife for violating a penal statute by reason of her driving on this particular occasion? A. Yes, sir."
Counsel for the defendants urged the following objection: "[I object] to the question and answer on the ground that it is irrelevant and immaterial and highly prejudicial to the defendants; [I object] on the further ground that if any plea of guilty was entered, an authenticated copy of the record from the court or judicial officer before whom such plea was entered would be the highest and best evidence; [I object] on the further ground that there has been no authority shown by him to represent his wife before any judicial court or officer."
The court made no ruling on this objection and the examination of the witness continued. This witness testified: "Q. From whom did you get the money? A. My wife. Q. What, if anything, did she tell you to do with that money? A. She told me to pay a fine with it. Q. Did you pay a fine? A. Yes, sir. Q. To whom did you pay the fine, Mr. Henderson? A. The Deputy Sheriff of Coffee County."
Counsel for the defendants reiterated his former objections and the court overruled them.
Counsel for the defendants alleges that this testimony to the effect that the defendant, Mrs. Mable L. Henderson, had given her husband some money to pay a fine for the violation of some criminal statute in connection with the operation of her automobile on said occasion--this charge being described as "reckless driving,"--was not proper and relevant testimony as constituting any admission by the defendant of any fault in connection with the accident and was, therefore, irrelevant and incompetent, and further alleges that the highest and best evidence of any criminal offense with which the defendant might be charged, and the nature thereof, would have been a certified copy of the warrant or accusation and the highest and best evidence of any plea of guilty would have been a certified copy of said plea taken on such warrant or accusation.
1. Special ground 4 of the amended motion for a new trial assigns error on the ruling of the court admitting an accident report of Patrolman Greer, and on the overruling of the various objections interposed by counsel in regard to this evidence, as set out in the statement of facts, supra. The accident report was objected to only because it showed an arrest of the defendant for failure to grant the right of way. The defendant and her husband then testified that the defendant told her husband to pay a fine. The testimony of the defendant as to the manner in which she drove her car on the occasion of the collision in which the plaintiff was injured demands a finding that she was guilty of the offense of failure to yield the right of way. She testified before the jury that her attempt to plead guilty was for "reckless driving" which as such, is not criminal. It, nevertheless, amounts to an admission against her interest.
Accordingly (a) the admission of the accident report was not harmful because the plaintiff admitted the facts therein shown, and (b) the objection that the plea of guilty would be the highest and best evidence is not meritorious. Actually such a plea of guilty, attempted to have been made by the husband on the authority of the wife to a deputy sheriff who is not authorized to receive such pleas, would be void. The evidence is not admissible on the theory that it is a plea of guilty but it is admissible on the theory that it constitutes an admission against interest.
In Roper v. Scott, 77 Ga. App. 120 (2) (48 S. E. 2d 118) this court held: "Where a civil action is instituted for damages on grounds of negligence for the violation of penal ordinances or statutes, and the defendant has previously confessed or pleaded guilty to the violation of such penal statutes whether it be in or out of court , these confessions are competent evidence as admissions against him in the civil action with reference to the same transaction." (Italics ours.) The reason that such testimony is admissible is not because a plea of guilty in a court has any particular sanctity on the trial of a civil action, but only because the plea constitutes an admission that the defendant was at fault. It does not need to be made in judicio, for under the authority of the Roper case it is admissible whether made in or out of court. If the judicial context of the admission is not controlling, as it thus appears that it is not, then it does not matter that in this case the plea of guilty would not have been sufficient as such in a criminal action. Such admissions are admissible on the ground that a party presumably will not make a statement against his interest unless it is true. In actions for personal injuries, a statement by a defendant to a plaintiff that he wants to pay for the plaintiff's medical attention constitutes an implied admission of liability. Rentz v. Collins, 51 Ga. App. 782 (2) (181 S. E. 678).
"Generally, proof of an explicit voluntary admission by a person of a fact adverse to his own interest is, in any civil proceeding against him, prima facie evidence of the existence of that fact; and, unless explained or denied, such admission may, of itself, authorize a jury to find accordingly. William Hester Marble Co. v. Walton, 22 Ga. App. 433 (4) (96 S. E. 269)." Scott v. Kelly-Springfield Tire Co., 33 Ga. App. 297 (1) (125 S. E. 773).
Accordingly, regardless of the legal effect of the attempt to plead guilty on the part of the defendant by authorizing her husband to pay a fine to a deputy sheriff, her own interpretation of this act as an acknowledgment that she was guilty of a traffic violation out of which this cause arose is admissible as an admission against her interest, and is the highest and best evidence of that fact, the plea itself being void. Because of this admission, any facts to the same effect shown by the accident report are harmless to the defendant. Failure to yield the right of way is alleged in the petition and is a violation of Code (Ann. Supp.) 68-1650 (b). This ground is without merit.
Rosenberg, 44 Ga. App. 211 (160 S. E. 808) with the court: "I represented the insurance company in that case and we lost the case and Your Honor tried the case." It is not contended that this was ground for a mistrial because it injected the issue of automobile liability insurance into the case. Counsel for the defendant had himself stated to the jury that the real defendant was an insurance company. The contention was that it was irrelevant and prejudicial. The court stated to the jury in answer to the motion "Well that's just a passing remark. Get that out of your minds . . . I told the jury not to consider the remarks, gentlemen, just don't consider the facts in any other case."
In discussing decided cases it is improper for counsel to make any remark as to the facts in such cases. Mays v. Mays, 153 Ga. 835 (113 S. E. 154). Assuming that it was under this rule improper to point out that the insurance company lost the case, it was not such prejudicial error as to require the grant of a mistrial, especially in view of the corrective action taken by the judge, to mention that another defendant in another case belonging to the same class as the defendant here lost that case. This assignment shows no such error as to require reversal. The remaining special ground is expressly abandoned.
3. As to the general grounds of the motion for a new trial it was necessary for the plaintiff's recovery to prove gross negligence against the defendant. West v. Rosenberg, 44 Ga. App. 211 (1, 5a) (160 S. E. 808); Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297). The evidence shows that the defendant driver testified that she entered the intersection while talking with the plaintiff who was sitting beside her in the seat without looking to the right and accordingly without seeing another automobile which was approaching the intersection in plain view of her and for which she would have stopped if she had observed its approach. Questions of diligence and negligence and also questions as to the degree of negligence involved are ordinarily for the jury. McDuffie v. Childs, 43 Ga. App. 37 (157 S. E. 900); Slaton v. Hall, 172 Ga. 675 (158 S. E. 747). The evidence here was sufficient to authorize a finding that the defendant had not used even slight care in entering the intersection without glancing at the intersecting road to ascertain that an automobile in plain view was about to enter from her right. The jury was also authorized to find the plaintiff guilty of negligence per se. Code (Ann. Supp.) 68-1650 (b) supra. The evidence was sufficient to authorize the verdict and the trial court did not err in denying the motion for a new trial.
There having been on rehearing, a dissent to the original opinion reversing this case, the case was, pursuant to the Act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232; Code, Ann. Supp., 24-3501), considered by the court as a whole. The original opinion was vacated and the present opinion substituted therefor.
FELTON, C. J., dissenting. 1. I think the court erred in admitting the testimony of one of the defendants, Mrs. Mable Laverne Henderson, to the effect that she entered a plea of guilty to the charge of "reckless driving." The evidence was introduced as an admission against interest but it is clear to me that the plaintiff's motive and purpose in introducing the testimony was to show a legal plea of guilty, which meant that there was a charge against the witness and that she entered a legal plea before a judge authorized to receive it. When it was developed from the evidence that there was no such plea of guilty the plaintiff did not seek to show what was said or written in such purported plea of guilty, but insisted on the admissibility of the testimony that the witness entered a plea of guilty and the court admitted the testimony as an admission against the witness's interest. This was error for the reason that the highest and best evidence of what the charge was and to what charge the witness pleaded would have been a certified copy of the charge and the plea. There was no attempt made to introduce evidence as to what the witness actually admitted doing. It is true she stated that she intended to plead guilty to reckless driving but there is no such offense and her admitting guilt of such an offense means nothing and the admission of such evidence was erroneous and harmful, as originally held unanimously by the second division of this court. For authority that a certified copy of the record is the highest and best evidence of a plea of guilty see the recent case of Webb v. May, 91 Ga. App. 437 (85 S. E. 2d 641). It will be seen from that case that if the plaintiff had abandoned the idea of introducing the evidence as a plea of guilty and had sought to introduce evidence of what the plea included, the original of the actual plea would have been the highest and best evidence; but the defendants had no opportunity to object to the testimony on that ground and it was not necessary because the intention was to prove a plea of guilty, and the defendants offered a valid objection to that evidence. The ruling in Roper v. Scott, 77 Ga. App. 120 (48 S. E. 2d 118), is not authority for the ruling in this case holding the evidence admissible. In Ground 4 of the amended motion in the Roper case complaint was made of the admission by Mr. Roper that he pleaded guilty in a police court to operating under the influence of whisky. The ground stated that the question was objected to on the ground that the same was irrelevant and illustrated no issue to be tried in the case. In Ground 6 of the amended motion in the Roper case complaint was made of the asking the question whether Mr. Roper pleaded guilty to a charge that he was drunk on the street. This ground stated that the defendant objected to the question on the ground that the same was irrelevant, immaterial, and prejudicial, and objected particularly to the form of the question "on which a sentence was suspended" on the ground that the record would be the highest and best evidence of the act sought to be proved. In assigning error on the allowance of such question the movant restricted his assignment of error thereon. He contended (1) that the question sought to bring out irrelevant, immaterial, and prejudicial matter, and permitting it to be answered was hurtful and prejudicial to movant because it permitted the jury, considering a civil action for damages, to consider the fact that a criminal prosecution involving the same transaction had been determined adversely to defendant; and (2) he made the contention that the form of the question presupposed before the answer was given that a conviction was obtained and a sentence imposed instead of proving such an allegation by the highest and best evidence. In Ground 7 of the amended motion in the Roper case the complaint to the admission by Mr. Roper that he pleaded guilty to being drunk on the street was confined to the point that the evidence was irrelevant and its admission was
hurtful and prejudicial to movant because it permitted the jury, trying a civil action for damages, to consider the facts surrounding a trial in another tribunal and the judgment of such other tribunal, adverse to the defendant, in its deliberations concerning the same transaction in a civil action for damages. Not a single one of the grounds of the amended motion in the Roper case properly raised the question whether a certified copy of the record in the criminal case in which the plea was contended to have been entered was the highest and best evidence of the charge made against the defendant in such case and the plea of guilty entered to such charge.
30 or 35 miles. Q. Of course, you didn't look at the speedometer? A. No. Q. Did you keep your head to the left, did you ever turn your head to the right? A. No, sir, I know I didn't or I would have seen the car. Q. Ma'am? A. I know I didn't turn my head to the right or I would have seen the car. Q. You didn't or you would have seen the car? A. Yes. Q. I will ask you if this is a picture of the car you were driving after the collision? A. Yes. Q. Is that a correct picture of the car you were driving? A. Yes. Q. What type car were you driving? A. A '53 Chevrolet. Q. I believe you were proceeding from the west toward the east on the Vickers Road? A. That's right. Q. And the other car was proceeding from the south toward the north? A. That's right. Q. And it was proceeding on the Fussell Road? A. That's right. Q. You intended, after you got in the intersection you were going to turn and go north? A. Yes. Q. You never did turn? A. No. Q. As I understand it you went beyond the intersection and never did turn? A. No. Q. You were beyond the intersection when you hit the car? A. Yes. Q. You were on your right-hand side? A. Yes. Q. Do you know what car got in the intersection first? A. No, sir, I don't. Q. Would you or would you not say you approached the intersection about the same time--you and the other car? A. We could have but I don't know. Q. You don't know? A. No, I don't know. Q. You didn't put on any brakes? A. No, sir. Q. Did you attempt to put on any brakes? A. No, sir. Q. Was your mother-in-law hurt? A. Yes, sir. Q. I think I asked you but I just want to be sure,--this is a correct picture of the trees over on the right-hand side as you approached? A. The trees were to my left--these would be to my right and these here are on the left. Q. That's right--these over here were to your left? A. Yes. Q. And these trees here were over on the right-hand side? A. No. I was coming this way and he was coming this way--this is the tree on the right. Q. These are the trees on the right? A. Yes, these are the trees on the right. Q. These are the trees on the right? A. Yes." At most this testimony shows that this defendant did not look to the right and did not stop or apply brakes. That alone does not show that she was negligent as to plaintiff or that her negligence was the proximate cause of plaintiff's injuries. It could have been possible, under the flimsy evidence, that the defendant Mrs. Henderson had the right of way despite her failure to look to the right, etc. It is very doubtful whether the evidence would have authorized a verdict for the plaintiff without the inference from the harmful and illegal evidence that the defendant Mrs. Henderson admitted that she failed to yield the right of way. It will be noted in the statement of facts that when the defendant Mrs. Henderson stated that she pleaded guilty to failing to yield the right of way (assuming that what she said means that she did so) the jury was out of the room and such a statement is not evidence in the case. The majority opinion is not based on this evidence, but, in reading the case, the fact that the jury was out at the time this testimony was given may not be observed by a casual reader. I am authorized to say that Carlisle, J., concurs in this dissent.
Lippitt & Lippitt, contra.
Peacock, Perry & Walters, for plaintiff in error.
DECIDED JUNE 1, 1956 -- REHEARING DENIED JUNE 14, 1956.
Saturday May 23 02:26 EDT


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