Rogers v. Carmichael

198 S.E. 318, 58 Ga. App. 343, 1938 Ga. App. LEXIS 250

• Court: Court of Appeals of Georgia
• Decided: July 9, 1938
• Docket: 26698
• Status: Published

Opinions

MacIntyre, J.

Frank Rogers brought this suit against Andrew Carmichael as the sole surviving partner of Carmichael & Hopkins, to recover damages for personal injuries caused by alleged negligence of A. V. Hopkins, the deceased partner. On the trial of the case the only evidence introduced was that of the plaintiff. After the plaintiff had closed, certain testimony given by him was excluded by the court; and on motion the court granted a nonsuit. To this ruling, and to the exclusion of the plaintiff’s testimony, he excepted. The allegations in the petition are substantially as follows: Carmichael & Hopkins was a partnership composed of Andrew Carmichael and A. V. Hopkins, with an office’ and place of business in McDonough, Georgia. The partnership was engaged in the selling of automobiles, trucks, and automobile accessories. To carry on this business both partners went to nearby towns to solicit business. On October 4, 1934, the firm was dissolved by the death of A. V. Hopkins, and the plaintiff brings this suit against Andrew Carmichael as the sole surviving partner of the firm of Carmichael & Hopkins. The partnership is indebted to the plaintiff $5000, by reason of the following facts: On the date mentioned the plaintiff was the prospective purchaser of an automobile from the partnership, and was riding with Hopkins for the purpose of demonstration, having been invited by Hopkins. They rode along a country road until they reached the State highway. Hopkins was driving, and when he reached the highway increased the speed of the car to sixty miles per hour or faster. Plaintiff cautioned him to slow down, but he replied that he could handle the car. He increased the speed to seventy miles per hour, and on rounding a curve he lost control of the car, and the car left the road, ran over an embankment and against a tree, striking the tree about fifteen feet above the ground. The car was demolished, the plaintiff was seriously injured, and Hopkins was killed. By reason of these injuries the plaintiff incurred stated hospital and doctor’s bills. He was without fault, and the negligent acts of Hopkins were the sole and proximate cause of the injuries to the plaintiff, the negligence being in the following particulars: first, in driving the automobile at an illegal rate of speed, over the protest of the plaintiff; second, in failing to check the speed of the car when approaching a sharp curve; third, in failing to keep the car under proper control in rounding the curve, and especially so at night as on this occasion. Wherefore the plaintiff prays for judgment against Carmichael & Hopkins, and Andrew Carmichael as the sole surviving partner of said firm of Carmichael & Hopkins, for stated items of damage amounting to $5000; and further prays for process directed to the defendant partnership, and to Andrew Carmichael as sole surviving partner, requiring him to be and appear at the next term of the court.

On the trial the plaintiff as a witness was asked the following questions, and made the following answers: Q. “Do you know how the accident happened? A. Well, too much speed when we hit the curve.” The court sustained an objection by counsel for defendant, that the plaintiff could not testify as to transactions or communications with the deceased partner. Q. “When you got to the top of the hill at Mr. Mitchell’s before you got to the curve, about what rate of speed were you going? A. Around sixty-five or seventy miles an hour. Q. In going down that slant to the curve, was the speed increased any? A. Sixty-five or seventy miles an hour. Q. Now, what was the cause of the accident at that point? A. Well, the speed, and he just lost control on this curve, and it left the road.” Counsel for defendant interposed the same objection, and it was sustained. Q- “That night after you left your store where did you go? A. Dropped in the drug-store for a few minutes, and then went across town and dropped in Clinton High-tower’s place, and walked from there to the Ford place. Q. Who did you see there ? A. Hopkins. Q. Did he say anything to you ? A. He did. Q. What did he say to you? A. I was at the store during the day. I did all the work by myself, and he came in and suggested that we go. Q. Suggested that you take a ride? A. Yes. Q. Which way did you go from there? A. Toward Locust Grove, down route 42. Q. Did you say anything to Mr. Hopkins about it [referring to the speed of the car in approaching the curve?] A. I did. I told him it looked; like he was driving too fast in approaching the curve, and he said, ‘Well, I have got the ear under control. I can handle it.’” The same objection to this testimony was interposed, and the objection was sustained for the same reason. Q. “Was the accident that happened to you in which you were injured in any way due to anything you did? A. No, sir. Q. What were you doing at the time of the accident? A. Sitting on the front seat.” The same objection was interposed and sustained.

If, as ruled by the court, the testimony of Rogers, the plaintiff, was incompetent as relating to “transactions” or “communications” between Rogers and Hopkins, the deceased partner, because prohibited by the Code, § 38-1603 (2, 5), the judgment granting a nonsuit should be sustained. Paragraph 2 of that Code section reads as follows: “Where any suit shall be instituted or defended by partners, persons jointly liable or interested, the opposite party shall not be admitted to testify in his own favor as to transactions or communications solely with an insane or deceased partner, or person jointly liable or interested.” “The testimony which can not be admitted where one of the parties is deceased must concern a ‘transaction or communication had directly with the deceased, . . of such character that the deceased, if alive, could deny, rebut, or explain the statement of the other party.’” Crews v. Crews, 174 Ga. 45, 47 (162 S. E. 107). In Whitley v. Hudson, 114 Ga. 668, 670 (2) (40 S. E. 838), the court ruled that the suit was not instituted against Whitley by the “partners,” but was brought by the survivor of the partnership in his representative capacity, and not by the living partner in his individual capacity, the only other partner being dead at the time of the filing of the petition; and held that said paragraph 2 was not applicable, and that the defendant Whitley should have been allowed to testify. In the instant case the suit was instituted after the dissolution of the partnership, and against the survivor of a dissolved partnership in his representative capacity, and was defended by this survivor of the partnership in his representative capacity; and therefore, under the ruling in Whitley v. Hudson, the Code paragraph cited above is not applicable. This decision by the Supreme Court of Georgia, never having been reversed or overruled, is binding on this court. With reference to § 38-1603(2), the instant case and the Whitley case are distinguishable from Morgan v. Johnson, 87 Ga. 382 (13 S. E. 710), in that in the Morgan case the suit was not against the survivors of the partnership of Harrold, Johnson & Company, but was against the living partners in their individual capacity. The suit in the Morgan ease was defended by the “partners,” and the Supreme Court held that the plaintiffs themselves, under the Code, § 38-1603(2), were not competent witnesses against the partnership as to transactions or communications with one of the partners who was deceased; whereas in the case sub judice the suit was defended by the representative of the dead (dissolved) partnership.

The court was right in excluding the testimony above referred to, as being prohibited by the Code, § 38-1603(5), which reads as follows: “No agent or attorney at law of the surviving or sane party, at the time of the transaction testified about, shall be allowed to testify in favor of a surviving or sane party, under circumstances where the principal, a party to the cause, could not testify;.nor shall a surviving party or agent testify in his own favor, or in favor of a surviving or sane party, as to transactions or communications with a deceased or insane agent, under circumstances where such witness would be incompetent if deceased agent had been principal.” As applied to the alleged facts in this case, was Hopkins, before his death, the agent of the partnership, by reason of the fact that he was a partner thereof, within the contemplation of paragraph 5 of section 38-1603 ? We think so. When this case appeared in the Supreme Court, 184 Ga. 496, supra, that court there held that Hopkins was not only the agent of the partnership, but was in fact its alter ego in matters relating to the partnership business. And thus we think that if Hopkins, under the circumstances, had been sued as the principal, he would have been incompetent, and therefore Rogers, the plaintiff, was incompetent to testify against the defendant who was being sued as the survivor of the partnership, and who is the present representative of the dissolved (dead) partnership, administering its assets and liabilities. Morgan v. Johnson, supra; Sherman v. Lane, 139 Ga. 781 (78 S. E. 123); Hinson v. Carswell, 17 Ga. App. 451 (87 S. E. 697). In Eley v. Reese, 171 Ga. 212 (155 S. E. 24), there were no dealings during the life of the deceased principal, while in the instant case there were dealings through its agents with the principal during its life, that is, before its dissolution. See, in this connection, Hidell v. Dwinell, 89 Ga. 532 (3) (16 S. E. 79). In construing § 38-1603, and the exceptions therein contained, the Supreme Court of Georgia has held ''that it is safer to adhere to the plain letter of its terms, and thus avoid the confusion which arose from the attempted liberal constructions of the evidence act of 1866.” McLendon v. Baldwin, 166 Ga. 794, 796 (144 S. E. 271). Therefore we are of the opinion that under paragraph 5 of that section the plaintiff was incompetent to testify in his own behalf as to “transactions” and “communications” had with the deceased agent alone, under' the circumstances which were such that the witness would have been incompetent to testify if the deceased agent had been sued as the principal. McLendon v. Baldwin, supra.

In the instant case the plaintiff was incompetent to testify as to the excessive speed of the automobile. There was an alleged agreement by which the deceased agent was to demonstrate the automobile, and while demonstrating it in pursuance of said agreement the deceased agent and driver of the car put on the gas and caused the speed of the car to be 65 or 15 miles per hour, and it turned over on a curve in the road, injuring the plaintiff and killing the agent. The running at such a rate of speed would have been a negligent act on the part of the deceased, and was one of the acts of negligence alleged in the petition; and a jury would likely have found a verdict for the plaintiff if nothing else had appeared to show that the plaintiff was not entitled to recover. The agent and driver of the car, being dead, could not contradict the plaintiff’s evidence if it were untrue, and on this vital point the defendant would have been at the mercy of the plaintiff. Mayfield v. Savannah, Griffin &c. Ry. Co., 87 Ga. 374, 377 (13 S. E. 459). The driving of the automobile at an excessive rate of speed, under the facts alleged in the instant case, was not a single, independent, physical act of the deceased, with which the plaintiff was in no way connected by communication or action; for the car was being run in pursuance of an alleged agreement between the parties to demonstrate it. Garrick v. Tidwell, 151 Ga. 294, 301 (5) (106 S. E. 551). The present case differs on its facts from Atlanta, K. & N. Ry. Co. v. Roberts, 116 Ga. 505, 510 (42 S. E. 753), in which there was no act of the two parties or agreement by both of them to enter into the transaction. It was there held that the spéed of the train was an independent physical fact which did not involve any communication or transaction with the decedent, and was not within the rule excluding such communications and transactions, in that "the plaintiff was not connected with it by any act of his.” The plaintiff was simply loading freight on a stationary ear placed there for that purpose, and the engineer of the switch-engine, without the consent or knowledge of the plaintiff, coupled the engine to the car which the plaintiff was loading, and began switching it around in the yards. Thus the plaintiff was being "taken for a ride” without his consent; and until the plaintiff was voluntarily jumping from the car, there was no "transaction” between the plaintiff and the engineer, the agent of the defendant company, with which the plaintiff was voluntarily connected. In short, the speed of a train or automobile is not, under any and all circumstances, an independent physical fact within the meaning of the Code, § 38-1603.

Judgment affirmed.

Broyles, G. J., concurs. Guerry, J., dissents.