Opinion
36704.
DECIDED MAY 20, 1957.
Tort; injured by fall from horse, etc. Before Judge Whitman. Fulton Superior Court. March 1, 1957.
W. George Thomas, for plaintiff in error.
R. Beverly Irwin, Osgood O. Williams, contra.
Under the situation as here depicted, counsel for the defendant cannot complain that he was deprived of a right to have another jury after the court had specifically instructed that the jury were being impaneled for the purpose of trying the issue as to the defendant, all parties concerned, including the defendant, being named by the court.
DECIDED MAY 20, 1957.
Frank Lord (hereinafter called the plaintiff), as next friend of Sue Lord, brought suit against F. N. Butner and Effie P. Butner as joint owners of a riding stable known as the Pine Hill Stables. Effie P. Butner filed a plea of no partnership and, after all parties struck a jury, the court heard the evidence and directed that Effie P. Butner was not a partner, and the case proceeded to trial with F. N. Butner alone as defendant, and resulted in a verdict for the plaintiff.
The pleadings are substantially as follows: Paragraph 1 of the petition reads: "That the defendants herein are Effie P. Butner and F. N. Butner, who own and operate the Pine Hill Stables and rent horses to the public, as a barn and stable and track at 90 West Wieuca Road, N.E., adjacent to the Chastain Memorial Park, sometimes known as North Fulton Park, and as such is subject to the jurisdiction of this court."
The defendant answered paragraph 1 as follows: "This defendant, F. N. Butner, admits that he owns and operates Pine Hill Stables and rents horses to the public, and is subject to the jurisdiction of this court, but this defendant denies that Effie P. Butner has any right, title or interest in and to Pine Hill Stables or any horses in said stable."
Paragraph 2 of the petition reads: "That the defendants and each of them have injured and damaged your petitioner in the sum of $50,000, as will hereinafter be more fully alleged." In the answer the defendant denied this paragraph of the petition.
Paragraph 3 of the petition reads: "Your petitioner alleges that his daughter, Sue Lord, age 17, around noon on the 14th day of July, 1953, in the company of others, went to the Chastain Memorial Park in Fulton County for the purpose of going horseback riding on said date at said time and place." In the answer the defendant stated that for want of sufficient information the defendant neither admitted nor denied the allegations of this paragraph.
Paragraph 4 of the petition reads: "That his said daughter engaged a horse from the said Pine Hill Stables which was being operated by the defendants and each of them at said time and place, and that she paid an attendant, one Arthur Brambley, $2 for her horse, the customary price for an hour's riding, and specified that she wanted a gentle horse." The defendant's answer stated that for want of sufficient information this paragraph could not be admitted or denied.
Paragraph 5 of the petition reads: "Your petitioner alleges that the said Arthur Brambley brought her a reddish-brown horse known as the mare `Princess,' already saddled, and assisted your petitioner's daughter in mounting the horse; your petitioner's daughter asked the attendant if the horse was one that would stop when she said `whoa' and she was assured that said horse was a gentle horse." The answer to this paragraph reads: "This defendant denies paragraph 5 of the plaintiff's petition as alleged, and further answering said paragraph this defendant shows that the plaintiff stated that she wanted a horse with some spirit as she was a better rider than the boy, whose name is unknown to the defendant, who accompanied the plaintiff to the defendant's stables."
Paragraph 6 of the petition reads: "Your petitioner alleges that his said daughter, in the company of others, left the stable on horseback and went up a trial in a westerly direction adjacent to the stables, leading to Lake Forest Road, and that immediately after beginning an incline from the stables on a bridle path that the said mare `Princess' suddenly bolted and started running away with your petitioner's said daughter, she trying to stop said horse by pulling on the reins and yelling `whoa,' which had no effect on the horse, and that the saddle girth was loose and the saddle started to slip and sway from side to side as the horse started running." This paragraph is denied in the answer of the defendant.
Paragraph 7 of the petition reads: "Your petitioner alleges that his daughter made an outcry for help and she was shaken into the air and off the horse except her left leg became hung in the stirrup, and she was dangling from one side of the horse to the other under his belly, and she was helpless when said horse began to run and picked up momentum down Lake Forest Road in a southerly direction, and at said time and place the City of Atlanta had under construction water mains along said Lake Forest Road and had a City of Atlanta construction truck parked along Lake Forest Road, and the said mare ran close to said parked truck and the petitioner's daughter's body and left side of her leg and arms were thrown against said truck, and your petitioner was seriously and permanently and horribly injured for life as the result of being thrown against said truck, and knocked unconscious at said time and place, all of which will be more fully alleged herein." In the answer the defendant stated that for want of sufficient information this paragraph was neither admitted nor denied.
Paragraph 8 of the petition reads: "Your petitioner alleges that the said F. N. Butner was at lunch and away from the stables at the time the stable boy, Arthur Brambley, let his said daughter have the horse, and alleges that at all times mentioned herein, he was acting as agent and servant of the said Effie Butner, and that had he been on the premises, another horse would have been selected who would have been gentle for his said daughter to ride, and alleges that the said F. N. Butner together with the said Effie Butner, defendants, knew that the horse for which they were charging and accepted money from the plaintiff's daughter to ride upon was a wild, dangerous and vicious horse which would likely run rapidly and wrecklessly and violently and suddenly turn and throw your petitioner's daughter off and horribly maim her." The answer to this paragraph reads: "This defendant denies paragraph 8 as alleged, and for further answer says that he was at lunch and away from the stables at the time plaintiff rented a horse, and that Arthur Brambley is this defendant's sole employee, and that Arthur Brambley was not and is not the agent of Effie Butner and that Effie Butner has no right, title or interest in the Pine Hill Stables, and is not engaged in the business of renting horses as the Pine Hill Stables is the sole property of this defendant and is managed by him. And further answering said paragraph this defendant shows that the horse rented to plaintiff's daughter was not vicious, wild or dangerous but on the other hand was a mild, tame and gentle horse."
Paragraph 9 of the petition, which was denied in the answer, reads: "Your petitioner alleges that the defendants herein knew the horse was not gentle and safe as was requested by his said daughter and for which she paid the defendants' agent and servant, Arthur Brambley, who at all times mentioned herein was the agent and servant of the defendants and each of them, but was wild, vicious and uncontrollable and dangerous to ride upon, and that it would probably throw the petitioner's daughter and maim her as happened and will be hereinafter more fully alleged."
Paragraph 10 of the petition, which was denied in the answer of the defendant, reads: "Your petitioner alleges that the defendants, acting through their agent and servant, Arthur Brambley, and that each of them failed to fasten the saddle on said horse properly through allowing the saddle to sway from side to side to cause the horse in running away to accentuate his speed and to catch the petitioner's daughter's foot and leg in the stirrup in such a way that she could not extricate herself."
Paragraph 11 of the petition, which was denied in the answer of the defendant reads: "Your petitioner alleges that the defendants and each of them or the defendant's agent failed to give the petitioner's daughter any warning whatsoever that the said horse was wild, wreckless, vicious, likely to run away, and to turn suddenly from the path into the road and throw your petitioner's daughter out of the saddle and off of said horse as it did on this occasion."
Paragraph 12 of the petition reads: "Your petitioner alleges that the said horse was given to the defendants and each of them by its owner, and that they knew said horse was not one which should be rented to the general public, and particularly to a minor child with practically no horseback training." The answer of the defendant reads: "This defendant denies paragraph 12, and further answering said paragraph this defendant shows that said horse was tame, mild and gentle, and that the plaintiff's minor child stated that she was a good rider and a better rider than the boy who accompanied her to the stables and went riding with her."
Paragraph 13 of the petition, which was denied by the answer of the defendant, reads: "Your petitioner alleges that as a direct result of the negligent acts as herein stated, that she was thrown out of the saddle of said runaway, wild and uncontrollable horse except that her left leg was caught in the stirrup and that she was thrown violently and with great force against a parked truck and that she suffered the following permanent injuries: (a) Your petitioner alleges that his said daughter suffered a fracture of the sacrum and a separation of sympysis pubis, severe lacerations over her entire body, and a transverse fracture of the shaft of the left femur. (b) Your petitioner alleges that she suffered a deep laceration in the left inguinal region 4 to 5 inches, extending into the perineum. (c) Your petitioner alleges that she suffered a laceration of the posterior perineum exposing rectal sphincter, exterior left leg. (d) Your petitioner alleges that his said daughter suffered externally notaled discoloration over mid part of left leg, tenderness over entire pebuis and left leg, and that the X-rays show fractures as described: 1. In separation of symphysis pubis. 2. Fracture of post wall of pelvis. 3. Fracture shaft left femur. 4. Laceration-inguinal region and perineum left. (e) Your petitioner alleges that his said daughter's left leg was pulled off and backwards from her said body, and that it dangled only from a few muscles and tendons and skin, and that it was necessary to install an intra-medullar pin in said left leg to affix the same back to the pelvis. (f) Your petitioner alleges that there is a chip fracture from the left public bone and that the said intra-medullary pin extends superiorly and is now in contact with the left ilium, which is abnormal and will cause a permanent injury as the result thereof. (g) Your petitioner alleges that his said daughter has suffered a marked separation of the pubic bone and that the sacroiliac joints are distorted to such a degree that it causes her great pain, agony, and suffering. (h) Your petitioner alleges that his said daughter suffered an oblique partially commnuted fracture of the middle third of the femoral shaft. (i) Your petitioner alleges that his said daughter suffered a fracture and that there is a distal fragment displaced posteriorly the full diameter of the bone and there is about 2 cm. overriding with fifteen degrees angulation present, causing the apex to be directed laterally, resulting in a serious deformity of the region of the pelvis and the upper third femur. (j) Your petitioner alleges that his said daughter had to undergo surgery and numerous blood transfusions, and there is a scar approximately 30 cm. long from the upper third of the femur of the left leg to approximately the knee joint where the bone was placed together by the said medullary pin, and said leg is horribly disfigured and will be for the rest of the petitioner's daughter's natural life. (k) Your petitioner alleges that his said daughter suffered severe injury to her vital organs which are permanent, and your petitioner alleges that his said daughter has suffered from irregular menses since said injury, and your petitioner alleges that all of his daughter's injuries are serious, crippling, disabling, and are permanent."
Paragraph 14 of the petition, which the defendant in the answer stated could be neither admitted nor denied for want of sufficient information, reads: "Your petitioner alleges that his said daughter was taken to Grady Hospital in an unconscious condition on the 14th day of July, 1953, and that she remained at said hospital until the 8th day of August, 1953, and that she has remained in bed and on crutches since said accident at her home in Buford, Georgia, with the exception of when she has been carried to the hospital for physiotherapy and other treatment, and that she owes Grady Hospital for room, blood, transfusions, anesthesia, operating room, drugs, X-rays, and laboratory fees the sum of $317.50, and for drugs and medicine, bandages, crutches, transportation to and from Grady Hospital the sum of $200, or a total of $517.50, all for which your petitioner sues. Your petitioner sues for future medical expenses for his said daughter, the amount of which is unknown to your petitioner at the present time."
Paragraph 15 of the petition, denied in the answer of the defendant, reads: "Your petitioner sues for pain and suffering, disfigurement, loss of earnings in the past, present and future, and sues for medical expenses in the future which are unknown to petitioner at the present time."
Paragraph 16 of the petition, which the defendant in the answer states that for want of sufficient information could neither be admitted nor denied, reads: "Your petitioner alleges that his said daughter worked for the Dinner Bell Cafe as a waitress, and earned and was capable of earning $42.50 per week, and that her earnings would have increased in the future, all for which your petitioner sues."
Paragraph 17 of the petition, which the defendant in the answer states could be neither admitted nor denied for want of sufficient information, reads: "Your petitioner alleges that his said daughter was 17 years of age and had a life expectancy of 43.57 years according to the Carlisle Mortality Table, and that she will be an invalid for the rest of her natural life, and will suffer excruciating pain, embarrassment, from disfigurement and loss of locomotion, all for which your petitioner sues and lays his damages on behalf of his said minor daughter in the sum of $50,000."
Paragraph 18 of the petition reads: "Your petitioner alleges that the said F. N. Butner, while holding himself out to the public as the owner of the Pine Hill Stables, is in fact an agent for his said daughter, Miss Effie P. Butner, and that they operate the said Pine Hill Stables together as joint owners, and your petitioner brings this suit against them as joint owners and prays judgment against them jointly and severally in the amount as stated above." The answer to this paragraph reads as follows: "This defendant denies paragraph 18 of plaintiff's petition and for further answer says that this defendant is the owner, operator and manager of the Pine Hill stables and has been for over 20 years, and that his daughter, Miss Effie P. Butner, has no right, title or interest of any kind in and to Pine Hill Stables, and that this defendant and Effie P. Butner do not operate said stables together as joint owners, and that they are not joint owners of Pine Hill Stables."
The defendant filed a motion for new trial on the statutory grounds and by amendment added one special ground. It is on the denial of the motion for new trial that the case is before this court for review.
The evidence shows substantially as follows: Sue Lord Martin, the injured minor, testified that she was a waitress making $42.50 per week at the time of the accident; that she went to the Pine Hill Stables and saw the defendant there when she arrived; that the defendant told an employee to give her the horse; that she paid the employee $2 for the rental of the horse for one hour; that she asked for a gentle horse; that the horse was brought to her with a saddle on it; that the horse started off in a trot, through a path up to a road; that the saddle slipped and she fell off the horse on the right side with her left foot in the stirrup; that the horse ran and the last she remembered was when the horse ran by a truck, then the next thing she remembered was when she regained consciousness about a week later in Grady Hospital; that she remained in Grady Hospital from July 14th until August 8th and then went to Buford, Georgia, and remained there a year recovering from the accident. She named five doctors that she remembered, who treated her. She testified that the accident happened July 14, 1953, and that she did not go back to work until some time in 1955; that she came back to Atlanta for treatment; that she rode mules on her father's farm when she was a child and that she could control horses; that she had ridden horses in the past; that she knew nothing about the custom of mounting horses; that when the horse bolted she pulled on the reins and said "whoa" to stop the horse, and that the horse did not stop.
Dr. Martin T. Myers testified that the injuries to the plaintiff were extensive and permanent, and he described the injuries to the jury.
The defendant stated that the horse was of medium height, a spirited horse, but a horse which had been ridden by children from time to time; that he had owned the horse for five or six months but that he later traded it to the same person from whom he bought it.
The previous owner of the horse testified that the horse was gentle and that his eight-year-old son frequently rode her when witness owned the horse.
An attendant testified that the horse was properly saddled.
1. As to the general grounds, the evidence is sufficient to sustain the verdict of the jury.
2. The one special ground assigns error in that it is contended that the court refused to permit counsel for the defendant to strike a jury of his own choosing after counsel for the codefendant had submitted a plea of no partnership to the jury and the court had directed a verdict in favor of the plea of no partnership. Movant contends that the defendant did not "participate in the plea of no partnership, did not aid or assist in striking a jury to determine the plea of no partnership and did not waive his right to strike a jury of his peers to try the main case, but specifically objected to proceeding to trial on the main issue without the right to strike a jury of his own choosing and specifically objected [in] that his constitutional rights were being invaded by the court not permitting him to strike a jury of his own choice."
It appears from this motion for new trial that counsel for the defendant was present at the time the jury was sworn and stricken. The court stated that counsel for the parties could make any statements desirable regarding the contentions of the respective parties. Counsel Irwin stated: "I was just wondering if Mr. Thomas would like to make a statement. He represents one of the defendants." Counsel Thomas replied: "May it please the court, we have not filed any plea of no partnership. They have filed a plea of no partnership, it being a special plea in bar, and we are on the trial of that question in the case and, therefore, I have no right to make any statement." The court stated: "The court will accord you the right to make any statement that you might care to make."
Counsel Thomas made a statement which is not made a part of the motion for new trial. Counsel Irwin stated that Counsel Thomas "made a speech to the jury in the beginning. He sat over there with them and helped strike the jury. He has taken an active part in it . . ." At one point the court asked the following question: "Now, the jury is to be qualified in respect of Frank Lord and Sue Lord and Effie P. Butner and F. N. Butner, and anyone else?" The court stated a short time later: "The court proposes to have the jury qualified in relation to relationship as to Frank Lord, Sue Lord, Effie P. Butner and F. N. Butner. Anyone else?" The court made the following statement also: "Gentlemen of the jury, both panels, we are about to take up for trial the case of one Frank Lord, as father and next friend of one Sue Lord, as plaintiff, against Effie P. Butner and F. N. Butner, as defendants. If your answer is in the affirmative to any of the questions about to be propounded to you by the court, you will indicate it by standing. Are you, or either of you, related by blood or marriage to Frank Lord, or to Sue Lord, or to Effie P. Butner, or to F. N. Butner? If so, let it be known. They appear to be qualified. Counsel for the parties may address questions to the panels in mass or to each panel as a whole, or separately, within the limits of questions authorized by law, either at the outset or after the call, and during the call may propound questions to the jurors individually within the limits authorized by law. Are there any questions that you gentlemen desire now to propound to the panels as a whole?" The court stated at the time that he thought counsel Thomas was a party at interest and stated this at the time the plea of no partnership was being heard and refused the motion to dismiss the motion to continue the trial at a later date, with another jury. When asked, counsel Irwin and counsel Thomas stated that each of them were ready for the jury to return to the courtroom, and the trial proceeded.
In support of this contention to continue, counsel for the defendant cites only one case, James V. Steele, 147 Ga. 598 ( 95 S.E. 11). It is our opinion that that case does not support the contentions of the defendant. In fact, it seems to us that the ruling there is against the contentions because of what is said in headnote 2 as follows: "The jury having been stricken and sworn, and the trial of the main case having proceeded to the examination of witnesses when the issue of forgery was tendered, and the defendants who raised the issue of forgery having consented to the trial of that issue separately before the jury already empaneled, there was no error, after the return of the verdict finding in favor of the genuineness of the deed, in ordering the trial of the main case to proceed before the same jury, over objections urged by the defendants." It appears that counsel Thomas was present and participated in the proceedings, as mentioned hereinbefore and he even made a suggestion as to striking a juror. Therefore, he had no right to object later to a proceeding in which he participated. In Holtsinger v. Scarbrough, 71 Ga. App. 318, 322 ( 30 S.E.2d 835), it was held: "Trial courts, under the necessity of the case, are allowed great latitude under the law, in exercising discretion pertaining to such matters as are now under consideration, and this court will not disturb the judgment unless this discretion is manifestly abused." Collateral issues and main issues of a case are tried before the same jury. In New York Life Ins. Co. v. Hartford Accident c. Co., 181 Ga. 55, 57 ( 181 S.E. 755) the Supreme Court said: "In a civil case the defendants are not entitled to a separate trial, nor is each entitled to strike the full number of jurors, but all of the defendants must join in striking the jury." See also Pool v. Gramling, Spalding Co., 88 Ga. 653 (4) ( 16 S.E. 52). The special ground is not meritorious.
The court did not err in denying the motion for new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.