*1 exceptions to strike and dismiss defendant of the report to the auditor’s be and the same is hereby sustained, plaintiffs exceptions and the are hereby stricken and The enumeration of single dismissed.” error is likewise solely directed to that intermediate order sustaining motion strike. It defendant’s reads: "Judgment plaintiffs for the defendant denying to have the fact to exceptions report of the auditor on a is It passed by contrary appears to law.” thus from the record that the appeal was limited to the despite intermediate order the existence of a final discharged judgment the defendant without costs. issues raised the appellant-plaintiff regard sustaining to the order defendant’s motion to strike have become moot view of court’s judgment Parker, Reinhardt discharging the defendant. powerless, This court therefore, a render decision upon questions pre- (b). sented Code plaintiff. Ann. The fact that there is a review certificate accompanying appeal as intermediate order does not prevent mootness. we the motion Accordingly, deem to dismiss the appeal meritorious. Pannell, J.,
Appeal Quillian, J., P. dismissed. concur.
Argued January January Decided
Harrison, Miller, Miller, & F. Jr., Jolles Charles appellant.
Burnside, Miller, Burnside, Jr., & R. Dye Thomas appellee. 49674. SOUTHEAST TRANSPORT CORPORATION et
al. v. COMPANY, HOGAN LIVESTOCK INC. Marshall, Judge.
Raymond Brantley, truck operating belonging easterly traveling Transport Corporation, Southeast following County in Jenkins No. Highway swine. loaded with Livestock Hogan truck been truck had Hogan the driver He asserted distance for some highway line” of "riding the center passed if he it would be best that he decided *2 ahead to enough far could see When he Hogan vehicle. he oncoming of traffic was free the road determine he to When pass. started the left and over to pulled he started Hogan the truck had passed that he thought view looked in his rear right, but to the to cut back over truck, the center line over Hogan saw the mirrors and truck at the Southeast turned into its wheels and with Hogan wheel of the The left front angle. 45 degree about pulled by a tank trailer of the front wheel caught truck to turn back truck Southeast, Hogan that caused the and turn over. to the and road bank into the ditch hogs were killed. Many cargo with Continental insurance on Hogan had loss, a loan taking it paid Company Insurance brought in this suit was Hogan. from Thereafter receipt loss. to recover for the Southeast Hogan’s name Continental Hogan to name require moved to Southeast party it was "a because party plaintiff an additional the motion. The court denied at interest.” as a witness Officer Hogan the case used trial of On event, and Baxter, investigation of the who had made an in the way found on the scene described what he him marks, etc., counsel asked and later hogs, tire dead on the a further elaboration "give he could us whether marks which smudge you tire and description of the objected counsel Defendant’s observed at scene?” testified already the witness ground smudge marks and concerning the tire and The repetitious. objection evidence would overruled. Jr., Harvey Fitzgerald, a witness
Plaintiff used as matter investigation concerning an who testified at the instance after the accident which he had made Company. On Adjusting his Underwriters employer, to sought for the defendant examination cross adjusting as to whether of the witness inquire acting company behalf Continental Insurance made, having investigation but on Company objection the court disallowed the inquiry. objected giving requested
Defendant charges on matters of the duties of owner of an (a) it highway keep good vehicle used on the (b) repair, and to observe no-passing condition and zones by marking established on the highway placed by the Department. State The objections were over- Highway ruled. plaintiff, returned a verdict overruling
from the of its motion for new trial defendant appeals, enumerating error on the matters above alluded to. Held: seeking In to have Continental Insurance as a it added was and is the appellant
contention of that when company paid Hogan receipt its loss took from a loan authorized proceed, expense, Continental its bring suit Hogan’s Southeast, name to recover from assignment amounted to an *3 Hogan’s of claim or cause of a action and made Continental interest in party at this that, litigation, interest, as a it party and should be (a) provisions under of joined Code Ann. 81A-117 (Ga. 1107). L. 629; pp. pp.
If a this were matter of first impression writer this opinion would be inclined to agree this contention. But it receipt has been held a loan issued circumstances, under these in the language of that here, used not assignment, does amount to an and that it is not required party advancing money under taking cover loss an insurance policy, receipt, be made a to an party action subsequently brought against tortfeasor, to recover third party a as the and that proceed the action the name of the may Co., insured. v. & 44 Ga. Realty App. McCann Dixie Lake Johns, SE Green v. 86 Ga. 646 App. SE2d 78). The language receipt the loan involved here is appeared the same as that which those substantially A language cases. different result would obtain if the had Co., been like in Kurtz v. Parker & Plumbing Heating 755), 118 Ga. App. 130 SE2d reversed in Ga. 31 729). (165 in the repetition allowing
2. The some is within direct examination of witness on examination a but should be judge, the sound discretion a rather and should be rare great caution exercised with (4). Bigelow Young, practice. than common (1). Ga. 380 A careful Compare King Thompson, not indicate an of the record here does consideration abuse discretion. of the court no error in the refusal We find to cross examine the defendant
allow identity of the in- concerning Fitzgerald witness Under- employer, for which his company surance the in- may have caused Adjusting Company, writers already, to be made. witness had vestigation examination, employer his and had identified direct in the course of investigation that he made the testified employment. his "The of the provides state
Code §
relationship,
his
feelings
parties,
witness’
of the
proved
jury.”
for the consideration
always be
was not a
Insurance
Continental
action,
Fitzgerald
any
not
appear
does
it.
employment
with it. His
relationship
of his
impeached
A
is not
virtue
witness
but it is a matter which the
is entitled
employment,
Thus,
a suit
credibility.
his
judging
to consider
inquire
to allow counsel to
proper
a railroad
railroad,
employee
an
of a witness whether he is
he may
of bias which
have.
showing
possibility
(3)
R. Co. v.
Ledford,
Louisville & Nashville
792). It
allow
as to
permissible
questioning
is
for his
as a witness and
paid
appearance
what
is
Black, 299, 301
Rogers
him.
paying
who
Co.,
(1) (173
Southern R.
431); Barrett v.
(10)
"A party may
It has been held that
*4
70
slightest
affect
degree,
the
may,
show
which
anything
McGriff,
v.
opposing
the credit of an
witness.”
McGriff
(5)
21).
(115
perceive
But we do not
The fact insurance an issue in a this, action long such as and we have held that evidence excluded, as to it should into evidence "[introduction 'he had insurance’ was calculated to [the defendant] suggest damages to the jury any found favor of the plaintiff' paid would be the insurance company and defendant, not by the highly prejudicial to the defendant’s cause. We think it tended to relax the con jurors sciences of the the case trying and render them responsive less to their to do impartial justice oaths between the Nor do we think that parties... allowing the evidence as to the insurance harmless because the jury had been notified that the defendant carried insurance in that been they purged had before the beginning of trial. . . fact that jurors [T]he questioned been on their dire voir as to their interest company justification injection is no for the insurance into the case trial.” (13 Jackson, 554, App. Minnick SE2d 891). Co., See also McRee v. Atlanta Paper App. (65 832); SE2d General Supply Co. Toccoa Co., 138 135); Maddox, Ga. 219 Plumbing Hoard (4) 744); Ga. 274 Harper SE2d v. Henry Warehouse 641); Chanin Corp., SE2d Lee, 876, 878 Lanier v. 111 Ga. App. Black Church, v. New Holland Baptist "These particular by plaintiff’s remarks were impress calculated to the minds of with idea that the defendant would not have to company pay it, judgment, verdict and if for the reason that arrangement had an company pay an insurance all such to its While injuries employees. verdicts court did all that could be done to disabuse them of this impression, lingered it must still minds. have their most way stop part effectual such conduct on the *5 mistrial, grant for the trial a whenever judge
counsel is is made.” O’Neill for a mistrial it occurs and a motion 59). Pruitt, 577, SE Mfg. Co. the of a The rule that be allowed must sifting and cross examination be balanced thorough the rule that irrelevant matters excluded from evidence. In the coverage should be the matter of insurance which is not justice, interest of issue, out. kept should be germane plaintiffs request charge 4. The court gave (Ga. Sess., L. Code Ann. Nov. substance of § 333, 334), 556, 615; 1963, that "No pp. providing pp. any highway shall drive or move on motor person any vehicle, trailer, trailer, pole semi-trailer or or any thereof, equipment upon any combination unless the order and ad- every good working said vehicle is law; vehicle is in in this and said justment required endanger condition as not to such safe mechanical person upon driver or or occupant any other highway.”
It was
Southeast
speedometer
admitted
order,
on its truck
out of
but there was no evidence
as to
other fault or defect. There was no evidence that
any
or
faulty speedometer
any way
caused
contributed
causing
the collision of the two trucks. Unless violation
proximate
of the statute had some
causal connection
of,
injury complained
between the violation and
upon
and can not be relied
as actionable
irrelevant
Oil
Corp.
Stanfield,
requested charge no-passing relative to zones indicated line, highway aby yellow double and established by the Department State under Highway authority of *6 (Ga. Code Ann. L. Sess., pp. 556, 584; Nov. 144, 145), pp. the duty of a motorist to observe them, contending that these were zones established for of oncoming benefit in traveling motorists direction, opposite and not for the benefit of one whose vehicle is passed. We do not agree. danger There is to the vehicle being passed and its in occupants passing by of it another at dangerous places, such curves, hills, like, and the as well as to the doing vehicle the passing and to oncoming traffic from opposite direction. We find no error in giving request. this general
6. The grounds the motion for new trial are merit. without Bell, J., Deen, J., Judgment Quillian, C. P. affirmed. Webb, JJ., Pannell,
Clark J., concur. P. Evans and Stolz, JJ., dissent. September January 6,1974
Submitted Decided Rehearing February denied 1975. Newton, McNatt, Sharpe, Hartley Hugh & B. appellants.
Bouhan, Thomas, & Levy, Williams James M. appellee. Judge, dissenting.
Stolz, I 1, 2, 4, concur Divisions 5 and of the
majority opinion.
2. I must respectfully dissent from Division of the majority opinion. Its basic fault lies in the statement that "Continental Insurance was not [Continental] and it does not action, a party to this that appear it. His any relationship with employment Fitzgerald simply The record supplied.) (Emphasis it.” by was It was shown the case. not show to be does Fitzgerald byor statements of the witness testimony that was Fitzgerald the court colloquy of counsel (Underwrit- Co. Adjusting Underwriters employed by ers) (T, 47); connected with Underwriters was (T, handled Con- Continental that Underwriters (T, 47); employ- Fitzgerald claims tinental’s time working ed for Underwriters (T, 49); investigated the collision question used in which was receipt owns the loan Continental (T, 49); Fitzgerald investigated the loss payment of on behalf of a interested some the accident (T, 49); is a cargo being carried that Underwriters (T, 51); that Underwriters of Continental subsidiary (T, 52); that there is a adjusting company Continental’s (T, and Continental between Underwriters relationship receipt received from 52); and that the loan (T, From Office, an affiliate of Continental Marine I there was believe obvious foregoing, substantial between the relationship employ- witness’ (Underwriters) er Continental. The citations opinion, contained in the constitute authority majority *7 on cross allowing develop for counsel to ample authority show to the jury examination matters which could slightest degree, in the affect the "anything may, v. 154 opposing credit of an witness.” McGriff McGriff (115 (5) 560 SE restricting judge unduly I reverse the trial would and, therefore, dis- of counsel’s cross examination sent. Judge
I Presiding am to state that authorized Judge Pannell concur in this dissent. Evans Judge, dissenting. Evans, I 3 of concur in Stolz’ dissent as Division Judge following: opinion, and add the majority Harvey examine plaintiff sought Counsel for to cross Jr., that Fitzgerald, J. who testified he went witness same, investigated by the scene of the collision him to the accident. who sent the scene of asking him "Well, thus: this is not objected Defendant’s counsel insurance simple admissible that reason fact of” (Tr. 46) on the either part party is inadmissible. p. A (Emphasis the members supplied.) majority court, agree with that strangely enough, seem contention.
But it is not now and never has been law of part insurance either Georgia that fact of different, party is inadmissible. The rule is far said rule brought for no when insurance is out other insurance, inadmissible, purpose except prove but if brought is out connection other evidence, material and admissible evidence will proves excluded because it also simply insurance. The interest or want of interest of a in a witness case is always proven. 38-107, matter proper to be Code §§ (8) (122 State, 38-1712; Camp App. SE 249). And is what plaintiffs sought to do here, witness, to show the interest showing why collision, is, he went to the scene sent him. who scene, If an insurance sent him to company he should have required give been to answer and information to the court. rule pronounced correct in the clearly case of Johnson, 92): Goldstein v. App. 64 Ga.
"
rule,
to the
'According
accepted
fact
generally
defendant
is insured or
against
otherwise indemnified
loss
of a recovery against
event
him can not be
shown as an independent
Bibb
[citing
fact
Williams,
Mfg. Co. v.
636); Heinz
App.
SE
Backus,
Martin,
Sims
Ga
872))
In Shapiro Packing 446), court, speaking through Eberhardt, Judge held: generally accepted "The rule is the fact that a defendant is insured or otherwise in the event of a against recovery indemnified loss an independent can not be shown as him fact And plaintiff.” (Emphasis supplied.) therein is the true answer; part if the fact of insurance is a of other relevant an independent evidence, as admissible; if it is shown insurance, to show it is inadmissible. fact, merely position, majority opinion In of its support page cases, cites seven but not a one of them single deals introduced in con- question of insurance I testimony. with other relevant concede readily nection it can not be introduced as an fact. independent case, deprived is to be plaintiffs In this of an right of cross examination proper the valuable witness, in that he is not to be allowed to show adverse He to show try the interest of the witness. did an not be independent fact, could to introduce admissible evidence deprived "insurance.” magic because it contained the word simply 49613. WIELGORECKI WHITE. September February Submitted Decided