Henderson v. Henderson , 94 Ga. App. 64 ( 1956 )

Townsend, J.

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 he 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 pa3^ 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).

Aecordingfy, 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.

Special ground 5 assigns error on the failure of the court to declare a mistrial on motion because of the statement of counsel for the plaintiff in discussing a reported case, West v. 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 im 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. , .

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 ah automobile in plain view was about to enter from her right. The jury wás 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 ease 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.

Judgment affirmed.

Gardner, P. J., Quillian, and Nichols, JJ., concur. Felton, C. J., and Carlisle, J., dissent.