Roper v. Scott , 77 Ga. App. 120 ( 1948 )

1. The evidence sustains the verdict insofar as the general grounds are concerned.

2. Admissions generally refer to civil actions, confessions to criminal cases. Where a civil action is instituted for damages on the 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; and on cross-examination it is competent for the opposite party to inquire of the defendant if he made such confessions. If he admits in the civil action having made such confessions, it is unnecessary to produce an authenticated copy of the proceedings in the criminal case and such admissions may be considered in determining the civil action.

DECIDED MAY 20, 1948. W. G. Scott brought suit against A. L. Roper seeking to recover damages in the amount of $25,000. Without going into details with reference to the allegations of the petition, it was briefly and substantially alleged that about 1:30 a. m., the plaintiff, while operating his taxicab, carried two passengers to the Biltmore Hotel on West Peachtree Street in the City of Atlanta. As he approached the hotel he was driving north. He stopped his taxicab within five or six feet from the sidewalk in the offset entrance in the street to the Biltmore Hotel's main entrance. The passengers alighted from the car and went inside the hotel. The remained in the hotel for several minutes. The plaintiff not having collected the fare, got out of his taxicab on the left-hand side, while the passengers were in the hotel. While the plaintiff was standing against his taxicab, and just after he had reached over into his car and turned off the ignition, the defendant traveling also northward on West Peachtree Street, drove his car in an angling direction and struck the plaintiff and pinned him against his taxicab, thereby knocking the plaintiff against his taxicab and down onto the street, inflicting serious personal injuries. It is alleged that West Peachtree Street at this point is approximately 80 feet wide and there was no occasion for the defendant to strike the plaintiff and his car except for the negligent acts alleged. The suit was originally brought against the Yarborough Motor Company and the defendant. There are certain acts of negligence alleged against the Yarborough Motor Company which we will not go into since the Yarborough Motor Company was stricken as a defendant. The acts of negligence alleged against the defendant were (a) that he was operating the automobile at the time of the alleged injury under the influence of whisky in violation of the laws of the State of Georgia and also of an ordinance of the City of Atlanta; (b) that the defendant was not keeping a lookout ahead of him in the direction in which he was traveling; (c) that he was operating the car in violation of the ordinance of the City of Atlanta as follows: "Any person driving a vehicle or street car shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard for the traffic, surface and width of the street and any other condition then existing, and no person shall drive any vehicle at such speed as to endanger the life, limb or property of any person. However, in no case shall the speed of a vehicle exceed 25 miles per hour." (d) That he was operating the automobile in violation of another ordinance of the City of Atlanta as follows: "Any person who drives any vehicle upon a highway carelessly and heedlessly, in disregard of the rights or safety of others, or without due caution and circumspection, and at such speed or in such manner as to endanger or to be likely to endanger any person or property, shall be guilty of reckless driving." (e) That he failed to apply his brakes in sufficient time to avoid striking the plaintiff; (f) that the defendant ran his automobile against the plaintiff with great force and violence.

The defendant filed an answer denying all the material allegations of the petition and further pleaded: (a) that if the plaintiff was injured by the operation of the defendant's automobile, the contact of the defendant's automobile with the plaintiff's person was occasioned as a result of the negligence of the plaintiff for that the plaintiff walked into the side of the defendant's automobile; (b) that the plaintiff alighted from his taxicab on its left side, the side toward traffic, without taking ordinary care for the safety and preservation of his own person; (c) that the plaintiff alighted from his taxicab without giving notice of his intention so to do and with wanton disregard of his own safety he walked into the line of traffic without exercising ordinary care under the circumstances; (d) that the plaintiff was negligent in that he had the chance to avoid the consequences of the alleged negligence of the defendant; that the negligence of the plaintiff in disregarding this opportunity was the sole and proximate cause of such injury as he may have sustained.

On the trial of the case the jury returned a verdict in favor of the plaintiff for $15,000. The defendant filed a motion for a new trial on the general; grounds and thereafter added four special grounds. The court overruled the amended motion and it is on this judgment that error is assigned here. 1. While the evidence is conflicting in some respects, it abundantly sustains the verdict for the plaintiff. Under the evidence the jury were authorized to find, under all the facts and circumstances, that the defendant was in clear violation of the ordinances of the City of Atlanta and they were authorized to find that the defendant was operating his automobile under the influence of intoxicating liquors. They were authorized to find that some one or more of the acts of negligence alleged and proved were the sole proximate cause of the injuries which the plaintiff alleged and proved that he received.

The court charged the principle of law as to apportionment of damages. It may reasonably be said under this record that conceding that the jury considered the plaintiff negligent in some degree, he was less negligent than the defendant. So far as the general grounds are concerned, they are without merit. This brings us to a consideration of the special grounds, which we will consider in their order.

2. Since the special grounds are so closely related, we will first set them out substantially and discuss them afterwards. Special ground 1 assigns error for the reason that while the defendant was on the stand, under cross-examination, he was asked whether a case was made against him for operating his car under the influence of whisky and whether or not to this charge he entered a plea of guilty and paid a fine. The defendant answered that there was such a case made against him and that he did plead guilty, all concerning the same transaction involved in this civil suit.

Counsel for the defendant objected to the admission of this evidence on the ground that it was immaterial, irrelevant, illustrated no issue and was hurtful and prejudicial to the defendant.

Special ground 2 assigns error because while the defendant was on the stand he was asked on cross-examination if he did not plead guilty with reference to leaving the scene of the accident. Counsel for the defendant interposed an objection to the admission of this testimony. The court first stated that he would let it in. This ruling of the court was made before the question was answered. Immediately thereafter the defendant stated that he did not enter any such plea. The judge then immediately stated that he would rule out the evidence on the alleged confession of leaving the scene of the accident.

Special ground 3: While the defendant was on the stand he was asked on cross-examination if he entered a plea of guilty to being drunk on the street, and if the sentence was not suspended. The grounds of objection to this question (there is no answer to the question in the record) was that the question sought to bring out irrelevant and immaterial and prejudicial matter because it permitted the jury to consider in a civil action for damages the fact that a criminal prosecution involving the same transaction had been determined adversely to the defendant; and further because the form of the question presupposed before the answer was given that a conviction was obtained and a sentence imposed instead of proving such by the highest and best evidence.

Special ground 4: While the defendant was on the stand he was asked by counsel if he was not charged with being drunk on the streets in the City of Atlanta. He stated that he was. He was then asked if he did not plead guilty. He said that he did not, and that he was not fined. He stated that the sentence was suspended because they all knew that he was not drunk. Over objection of the defendant the court admitted the evidence. The admission of the evidence is assigned as error because it is prejudicial and permitted the jury during a civil action for damages to consider the facts concerning a trial in another tribunal and the judgment in another tribunal adverse to the defendant. It must be kept in mind that at the outset the questions propounded to the defendant and the answers given by him pertained to confessions of the defendant involving the same transaction in some lower court, — the record does not reveal whether in the recorder's court or some other court. As to whether these charges were made against the defendant in a court of record is not revealed by the record in the instant case. At any rate, it is clear that the defendant was on cross-examination and the questions propounded to him were for the purpose of ascertaining whether or not the defendant had made a confession concerning those charges. Where, as here, the defendant is being sued for negligence causing injury, one of which acts of negligence was for operating the car while under the influence of intoxicating liquors and the defendant in or out of court made a confession that he was so operating his car at the time of the injury complained of, we think this is permissible in a civil case as an admission. Of course such admission is only a circumstance to be considered along with all the other evidence in the civil action for damages. A plea of guilty differs only from a voluntary confession in that a voluntary confession not in court is mere evidence of guilty, while a plea of guilty is a formal confession in court on which a judgment may be rendered. And in either event the defendant may be asked if he made such confession either in or out of court and we think that if he testifies that he made such confession it is competent evidence in a civil case involving the same transaction as an admission. Our attention is called to several cases by counsel for the defendant that the court improperly admitted the evidence as set forth in these special grounds. We will discuss certain cases which have been called to our attention, first, Pollard v. Harbin, 56 Ga. App. 172 (192 S.E. 234). In that case the court held that the conviction in a criminal prosecution of the agent of the defendant in a civil action was not competent evidence. That is not the question here. Our attention is called to the case ofCottingham v. Weeks, 54 Ga. 275 (1), in which the court said: "In a suit by a widow for the homicide of her husband, the record of the acquittal of the defendant, under an indictment for the murder of the husband, is not evidence for the defendant in a civil suit, and a plea of such acquittal is demurrable." The principle there is not akin to the one here. In Tumlin v.Parrott, 82 Ga. 732 (2) 733 (9 S.E. 718), the Supreme Court said: "The record of the defendant's acquittal on an indictment for killing the cattle as constituting the offense of malicious mischief, though the plaintiff was the prosecutor, is not admissible in the civil action." It will readily be seen that the ruling there is not akin to the question now under consideration. In SeaboardAir-Line Ry. Co. v. O'Quin, 124 Ga. 357 (52 S.E. 427, 2 L.R.A. (N.S.) 472), a passenger who claimed to have been forcibly expelled from a train by the conductor sued for damages. The court held that in such an action against the carrier it was not admissible to plead or prove the conviction of the plaintiff in a criminal prosecution brought against him for using profane and vulgar language in the presence of females on the occasion when he was forcibly expelled from the train. That case does not involve any confession at all. Moreover, the suit was not against the conductor. So the principles involved in that case are not applicable here. In Powell v. Wiley, 125 Ga. 823 (54 S.E. 732), a suit was instituted for an alleged assault and battery. The defendant offered a plea setting forth his acquittal in a criminal prosecution in the same alleged transaction. The court held that this was not competent evidence. It will be seen that the facts in this case in nowise involve a confession or admission. This court held in Corley v. State, 64 Ga. App. 841 (3) (14 S.E.2d 121), that a witness who had been convicted of a crime involving moral turpitude might be discredited by reason thereof, but that this could not be done by parol testimony; that in such event an authenticated copy of the record would be the highest and best evidence. This is the law as we understand it, but the principle has no application in the instant case. The principle in the Corley case is not in conflict as we see it, with anything which the court said inHall v. Burpee, 176 Ga. 270 (168 S.E. 39). Without going into further details or discussion, we see no merit in any of the special grounds. On the question of plea of guilty, confessions, and admissions, see Lumpkin v. American Surety Co., 69 Ga. App. 887 (27 S.E.2d 412). While the assignments of error in the special grounds may raise some question as to whether the procedure was altogether proper, yet under the facts of this whole record none of them is cause for reversal.

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.