Opinion
40476.
DECIDED FEBRUARY 14, 1964.
Action for damages. Floyd Superior Court. Before Judge Scoggin.
Parker, Clary Kent, Horace T. Clary, for plaintiffs in error.
Wright, Walther Morgan, Clinton J. Morgan, contra.
1. The exception to the overruling of the special demurrers is expressly abandoned.
2. The plaintiff's petition set forth a cause of action, and the trial court did not err in overruling the defendants' general demurrer.
3. An order overruling objections by the defendants and the claims manager of the defendants' purported insurer to the plaintiff's interrogatories directed to the claims manager was an interlocutory order not subject to direct appeal for the reason that it cannot be known whether or not the interrogatories, or some of them, will be admitted in evidence until they are offered as evidence, hence it cannot be determined whether or not harmful error will result.
DECIDED FEBRUARY 14, 1964.
Marvin C. Cole brought an action against Alfred N. Fricks and George A. Fricks for damages caused by the defendants' alleged negligence. The material allegations of the petition are substantially as follows: On December 21, 1961, at approximately 9 a. m., the plaintiff was driving a truck on his regular dry-cleaning pickup route through the subdivision known as Sherwood Forest in Floyd County, Georgia. The plaintiff brought the truck to a full stop on Lionel Lane at the point of its dead-end intersection with Robin Hood Road, a through street running approximately in a north-south direction. Before entering Robin Hood Road, the plaintiff looked both ways along said road for oncoming traffic. The visibility to the plaintiff's right was about 400 yards, but that to his left was only about 200 yards, the road in that direction going uphill and curving. No oncoming traffic being visible, the plaintiff drove the truck into Robin Hood Road, which was about 18 feet wide, with the intention of angling slightly across said road and entering a driveway which intersected Robin Hood Road at a point approximately five feet south of Lionel Lane. After the plaintiff had crossed Robin Hood Road and as the front tires of the truck were entering the driveway, the truck was struck a violent blow at the left rear wheel by the right front of a 1961 Pontiac Tempest automobile owned by defendant Alfred N. Fricks and maintained by him for the use, comfort and pleasure of his family, including his 18 year old son, defendant George A. Fricks, who was driving at the time of the collision. The automobile approached from the plaintiff's left-hand, or northerly, side at the unlawful speed of 50 miles per hour, the lawful speed limit being 25 m.p.h. Notwithstanding there were no obstructions in the western half of the roadway and sufficient room for the automobile to pass in, defendants' automobile collided with the truck while it was entirely within the eastern half of the road. The place of the collision is within a heavily populated residential subdivision and Robin Hood Road is a narrow, winding and rough surface street. Defendant George A. Fricks resided on Robin Hood Road and was familiar with the area in question, having driven along it on numerous occasions. The negligence of the defendant driver, George A. Fricks, which is imputed by operation of law to the defendant owner, was the sole, direct and proximate cause of the plaintiff's injuries and consisted of the following particulars: (a) negligence per se in driving said automobile at a speed in excess of 25 m.p.h., in violation of Code Ann. § 68-1627; (b) negligence per se in driving at a speed greater than was reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, in violation of Code Ann. § 68-1626; (c) negligence per se in failing to so control the automobile's speed to avoid colliding with the truck, in violation of Code Ann. § 68-1626; (d) negligence per se in failing to drive upon the right half of the road, in violation of Code Ann. § 68-1633; (e) failing to drive along the right side of the road behind the plaintiff's truck, thereby avoiding striking the truck; (f) failing to keep the automobile under control sufficiently to avoid colliding with the truck. The plaintiff incurred certain alleged injuries to his head, neck, chest and back which required surgery and various medical expenses and caused pain and suffering and permanent impairment of his ability to labor.
The defendants filed general and special demurrers and an answer to the petition. Before the court ruled on the demurrers, the plaintiff filed a notice of interrogatories to be submitted to Paul J. Sorrells, Claims Manager of Cotton States Mutual Insurance Company, to which the defendants filed their timely objections to the interrogatories. The court overruled the general and special demurrers and all of the 14 objections to the interrogatories excepting number 12, to which judgments the defendants except.
1. The plaintiffs in error expressly abandoned their exception to the judgment overruling their special demurrers.
2. Code Ann. § 68-1626 requires that the driver of every vehicle shall drive at an appropriately reduced speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, so controlling speed as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care. The petition alleges the existence of practically all of the conditions above enumerated, to wit: an intersection, a curve, a hill and a winding and rough surfaced roadway. The petition alleges facts which show that the plaintiff was on the street in compliance with legal requirements and the duty of all persons to use due care; it is alleged that he brought the truck to a complete stop and did not enter the intersection until he had looked both ways for oncoming traffic and had seen none. "Furthermore, the plaintiff is not required in his petition to negative the fact that his injury was not the result of his own failure to exercise ordinary care for his own safety or that it was not the result of his own negligence. Such would be matters of affirmative defense. If the petition makes a jury case as to the defendant's negligence, and it does not affirmatively appear therefrom that the injury resulted either from the plaintiff's own negligence or from his failure to exercise ordinary care for his own safety upon discovery of the defendant's negligence, the petition would not be subject to general demurrer on the ground that it does not set out a cause of action." Bach v. Bragg Bros. Blackwell, Inc., 53 Ga. App. 574, 577 ( 186 S.E. 711); Lawrence v. Hayes, 92 Ga. App. 778 (4) ( 90 S.E.2d 102). The court did not err in overruling the general demurrer to the petition.
3. Exception is taken to the overruling of the objections to the proposed interrogatories to be submitted to the claims manager of Cotton States Mutual Insurance Company, whereby information regarding the defendant's insurance coverage and details of the collision are sought by the plaintiff.
Most orders requiring or denying discovery do not finally dispose of the proceeding or of any independent offshoot of it, and are, therefore, not appealable. If a discovery order is terminative of a plenary proceeding, as an order for the perpetuation of testimony under Rule 27, Federal Rules of Civil Procedure ( Ga. Code Ann. § 38-2102), it is final and appealable. If a discovery order is not complied with and noncompliance leads to an order of contempt, if the contemnor is not a party to the litigation, the order adjudging him in contempt is final, even though it is entirely civil in character. Most discovery orders, then, are not subject to direct appeal and generally they are not reviewable by mandamus or prohibition. It has been held that no appeal will lie from an order directing a party or witness to answer interrogatories. Hartley Pen Co. v. United States District Court for Southern District of California (CA9th, 1961) 287 F.2d 324, 4 FR Serv2d 34.64, case I. While the correctness of discovery orders oftentimes has become moot by the time review is had of a final judgment in the case, they are, nevertheless, reviewable on appeal or cross appeal from the final judgment, insofar as they are not moot and have affected the correctness of that judgment. Moore, Federal Practice, Vol. 4, § 26.37 [1.-1]; Ibid., 1961 amendment, p. 592.
The order overruling the objections is therefore not reviewable under the Federal rules, nor is it made reviewable under Georgia law by the following provisions of Code Ann. § 6-701: "Where bill of exceptions is permissible, all judgments, rulings, or orders rendered in the case which are assigned as error, and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such judgment, ruling, or order standing alone, and without regard to whether the judgment, ruling or order excepted to was final, or was subject to review by some other express provision of law contained in this section, or elsewhere." "Our courts have recognized the general rule that to constitute either ground for a new trial or reversible error the ruling complained of must constitute both an error and an injury to the complaining party." Green, Georgia Law of Evidence, 26, § 10, citing Harrison v. Hester, 160 Ga. 865 (3) ( 129 S.E. 528), Jones Phillips, Inc. v. Patrick, 11 Ga. App. 67 ( 74 S.E. 700), and Weiss v. Johnson Johnson Const. Co., 98 Ga. App. 858 (9) ( 107 S.E.2d 708). The order overruling the objections to the interrogatories did not amount to an admission of the answers thereto in evidence, since the court must still rule upon their admissibility, subject to any objections made under the provisions of Code Ann. § 38-2101 (e), when and if the completed interrogatories are offered as evidence. Since the testimony elicited by the interrogatories need not necessarily be such as will be admissible at the trial, Code Ann. § 38-2101 (b), and it cannot be known at this stage of the proceeding which interrogatories will be offered as evidence or which will be admitted in evidence, it is therefore impossible to judicially determine whether or not the overruling of the objections will, or even may, affect the subsequent proceedings and constitute harmful error.
The court did not err in overruling the general demurrers to the petition.
Judgment affirmed. Frankum and Pannell, JJ., concur.