Brinks, Inc. v. Robinson

McMurray, Presiding Judge.

This is an action for damages arising from two motor vehicle collisions. Sheila Robinson (plaintiff) seeks damages for injuries arising from a collision in Columbus on December 31, 1990, between a vehicle in which she was a passenger and an armored truck operated by Brinks, Inc. (“Brinks”). Plaintiff also seeks damages for injuries suffered on April 29, 1991, when a car she was driving collided with a vehicle operated by defendant Cowling. The case was tried before a jury which returned a verdict in favor of plaintiff. The judgment provides that plaintiff recover $25,000 from defendant Cowling and $850,000 from defendant Brinks, plus interest and costs. Only the defendant Brinks has appealed. Held:

1. Brinks enumerates as error the trial court’s joinder of parties defendant and claims against successive tortfeasors. Plaintiff’s complaint alleges that Brinks and Cowling were joint tortfeasors because their actions combined to produce a single indivisible injury. See Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421), aff’d Mitchell v. Gilson, 233 Ga. 453 (211 SE2d 744). The trial court denied Brinks’ motion to sever based upon misjoinder of parties and also denied Cowling’s motion to transfer for improper venue.

The Civil Practice Act provides for permissive joinder of parties and claims as follows: “All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given . . . against one or more of the defendants according to their respective liabilities.” (Emphasis supplied.) OCGA § 9-11-20 (a). If they were joint tortfeasors, the defendants in this case could have properly been sued jointly despite their residing in different counties. Ga. Const. 1983, Art. VI, Sec. II, Par. VII.

However, these defendants were not joint, but successive tortfeasors. The defendants did not act in concert, the acts of negligence involved were separated by several months, and the plaintiff did not suffer an indivisible injury. Plaintiff having survived the separate wounds inflicted upon her, a basis for division exists and no matter how difficult the proof may be, the torts are several. Posey v. Med. Center-West, 257 Ga. 55, 56 (354 SE2d 417); Knight v. Lowery, 228 Ga. 452, 455 (185 SE2d 915); Gay v. Piggly Wiggly Southern, 183 Ga. App. 175, 178-181 (2, 3) (358 SE2d 468); Phillips v. Tellis, 181 Ga. App. 449, 450 (352 SE2d 630); Gilson v. Mitchell, 131 Ga. App. 321, 325, supra. The two separate accidents are insufficiently connected to constitute a “series of occurrences” giving rise to plaintiff’s claims.

We cannot agree with the dissent’s reliance on the Supreme Court’s decision in Polston v. Boomershine Pontiac-GMC Truck, 262 Ga. 616 (423 SE2d 659) to find otherwise. As the dissent notes, defendants in a “crashworthiness” case are properly sued as joint tortfeasors in that one accident is conceptually comprised of two collisions: A vehicle initially collides with another vehicle, after which a plaintiff experiences a so-called “second collision” with the ground or with interior parts of his vehicle. The two collisions are inextricably linked in a “series of occurrences.” Thus, unlike the case sub judice, in “crashworthiness” cases alleged negligence of a defendant manufacturer and a defendant driver converge at the time of a single accident so that they logically constitute a “series of occurrences” in satisfaction of the first prong of OCGA § 9-11-20 (a). Similarly, in Gilson v. Mitchell, 131 Ga. App. 321, supra, aff’d 233 Ga. 453, supra, cited by the Supreme Court in support of its analysis in Polston and by the dissent herein, separate acts of negligence by three doctors in connection with using a central venous pressure catheter in plaintiff’s right external jugular vein during his hospitalization for stomach surgery converged in the harm of subjecting the plaintiff to unnecessary medical procedures and mental distress, thus constituting a “series of occurrences.” In the case sub judice, however, the plaintiff was involved in separate accidents four months apart involving different vehicles, and different circumstances. The alleged acts of negligence by Brinks and Cowling are not sufficiently connected to constitute a “series of occurrences” within the meaning of OCGA § 9-11-20 (a). To allow joinder of plaintiff’s claims over objection by either defendant is to disregard the first requirement for permissive joinder. To force Brinks and Cowling to defend plaintiff’s claims in a single action is to exceed the direction pointed by the Supreme Court in Polston. Indeed, such a holding would invite plaintiffs to join any number of disconnected and unrelated wrongdoers in one action by alleging that the “series” of alleged intentional or negligent acts caused them emotional distress, mental injury, or other intangible, “indivisible” harm.

The dissent reasons that improper joinder in this case has worked no harm to Brinks that would not necessarily recur at a second trial. However, “it is not essential for defendants to prove prejudice for if joinder is not authorized by the plain language of the statute, no amount of judicial economy can justify it.” Howard Motor Co. v. Swint, 214 Ga. App. 682, 683 (448 SE2d 713); see also Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 175 (1), 179 (c) (421 SE2d 767) (“goal of judicial economy cannot justify sacrificing the rights of the parties”). Plaintiff not having satisfied the first requirement for permissive joinder of parties under OCGA § 9-11-20 (a), she must bring separate actions against the successive tortfeasors. Accordingly, the trial court abused its discretion by denying Brinks’ motion to sever plaintiff’s claims for misjoinder of parties and as to defendant Brinks, we reverse. Compare Vitner v. Funk, 182 Ga. App. 39, 40 (1) (354 SE2d 666).

2. In light of our decision in Division 1, it is not necessary to address Brinks’ enumeration that the court erred in instructing the jury to apportion damages as between joint tortfeasors in a personal injury action, and entered an illegal judgment on the jury’s verdict. We address those evidentiary matters likely to recur on retrial of this case, however.

3. Brinks next argues the trial court erred in allowing plaintiff’s treating chiropractor to offer an opinion as to which of the two collisions was responsible for the injury to her right hip and sacroiliac. “ ‘The question of whether a witness is qualified to give his opinion as an expert is one for the court. (Cit.) His determination will not be disturbed except that it be manifestly abused.’ [Cits.]” City of Fairburn v. Cook, 188 Ga. App. 58, 67 (10) (372 SE2d 245).

The Supreme Court’s decision in Chandler Exterm. v. Morris, 262 Ga. 257 (416 SE2d 277), cited by Brinks, does not control this issue. In that case the court held a psychologist was not qualified to offer an opinion concerning the medical or organic causation of mental dysfunction. Here, the chiropractor’s opinion concerned the relationship between his patient’s symptoms and the relative impacts to which she had been subjected in two automobile collisions, a matter logically within his expertise. The chiropractor had treated numerous accident victims, had seen the plaintiff on some 50 visits and was thus competent to offer an opinion as to which impact caused the injury to her right hip and sacroiliac.

Brinks also argues the trial court erred when it questioned the chiropractor about his education and qualifications so as to bolster that witness’ credibility. In response to Brinks’ objection at the bench, however, the trial court explained to the jury that it had no opinion about the case or the witness’ credibility and simply asked the questions so the jury might know the chiropractor’s background. The final charge to the jury also included a curative instruction that “[n]othing that I do or say during the trial of this case was intended to hint, suggest, or somehow communicate to you in some way or another which party should prevail in this matter.” “[I]n the absence of clear evidence to the contrary, qualified jurors, under oath, are presumed to follow the instructions and procedural directives of the trial court. [Cit.] . . . Nothing contained on the face of this record is so compellingly erroneous as to preclude the jury from following this curative instruction, and we note that [Brinks] entered no exception to the curative instruction at the conclusion of the court’s charge.” Harris v. State, 202 Ga. App. 618, 619 (3a), 620 (414 SE2d 919).

4. The trial court did not abuse its discretion in allowing one of plaintiff’s treating psychologists to testify at trial upon one day’s notice to Brinks when Brinks had the psychologist’s office notes and was aware well before trial that she had treated the plaintiff in association with Dr. Falls, whose deposition testimony was read to the jury. City of Monroe v. Jordan, 201 Ga. App. 332, 335 (4), 336 (411 SE2d 511).

5. The trial court did not err in admitting, over Brinks’ hearsay objection, the office notes of plaintiff’s psychologist Dr. Falls containing observations and conclusions of his associate Dr. Angela Register, who did not testify at trial; and the clinical records from Capital Rehabilitation Hospital containing notes of a physical therapist who also was not called to testify at trial. Dr. Falls testified that based upon his examination of the plaintiff, he concurred in the opinions of Dr. Register and discussed with her all notations before they were entered in the clinical record. Dr. Falls signed and thus ratified each note in plaintiff’s record. Since Brinks thoroughly cross-examined Dr. Falls as to the notes, the purpose of the rule against hearsay has been served.

“Although we may conclude that the admission of certain portions of these medical records was error, nevertheless, there was no error of magnitude to warrant reversal of the jury’s verdict. At worst the [physical therapist’s] reports were merely cumulative and any error in admitting them was harmless. [Cit.]” Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 678 (4) (278 SE2d 100).

6. Brinks contends there was insufficient evidence for the jury to make an award of future lost earnings, and the court therefore erred in charging the jury on this aspect of the plaintiff’s damages and the use of mortality tables to calculate such an award.

“[W] her ever there is evidence of the pecuniary value of the plaintiff’s earning capacity at the time of injury coupled with evidence of the nature and extent of the diminution of that capacity [,] the jury may arrive at a reasonable and just compensation for impairment of earning capacity.... Based on [such] evidence . . . , a jury may make an award as compensation for diminished earning capacity, whether or not the evidence establishes with any exactitude the lost future earnings.” Jones v. Hutchins, 101 Ga. App. 141, 144 (2), 147 (113 SE2d 475). “In Michaels v. Kroger Co., 172 Ga. App. 280 (322 SE2d 903) (1984), this court, relying on Jones v. Hutchins, supra, and on Hunt v. Williams, 104 Ga. App. 442 (122 SE2d 149) (1961), held at 286 that ‘all future earnings or diminished future earnings are uncertain and difficult of ascertainment. . . , but this does not mean that a plaintiff should be denied a recovery. Prior decisional authority requires only that there must be evidence from which the jury can estimate, or reasonably infer the loss or decrease in earning capacity.’ ” Walkley v. Dukes, 175 Ga. App. 820, 823 (4), 824 (334 SE2d 868). In the case sub judice, the evidence showed that due to her injuries, the plaintiff had physical difficulty performing her current job as a Coats & Clark loomer, and had in fact been encouraged to seek other work. As the plaintiff testified, her lack of education limits her prospects for better-paying work, and her physical limitations now make it unlikely that she will find work paying as well as her current job. We find there was sufficient evidence in the record upon which the jury could base an award of future lost wages.

Judgment reversed.

Pope, C. J., Birdsong, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur. Beasley, P. J., concurs specially. Smith, J., dissents.