Summary
In Kalil v. Spivey, 70 Ga. App. 84 (2) (27 S.E.2d 475), this court said: "A motion for new trial without an approved brief of the evidence is a mere nullity.
Summary of this case from Dobbs v. SimsOpinion
30169.
DECIDED OCTOBER 26, 1943.
Damages; from Douglas city court — Judge Grantham. May 1, 1943.
T. V. Williams, for plaintiff in error. D.C. Sapp, contra.
1. A motion to set aside a judgment may be presented and a rule nisi thereon granted in vacation, setting the hearing for a subsequent term of the court; and during said term the court may pass an order extending jurisdiction of the case to a date beyond the term. Where such motion was presented in vacation and set down for hearing in term time, and the defendant filed a response during the term, and a judgment finally disposing of the issue was rendered on a day beyond the term, it will be presumed, nothing affirmatively appearing to the contrary, that the necessary order was passed during the term to retain jurisdiction until the date of the judgment finally disposing of the motion.
2. A motion for new trial without an approved brief of the evidence is a mere nullity.
3. The court erred in overruling the motion to set aside the verdict and judgment.
DECIDED OCTOBER 26, 1943.
This case is here on exceptions to a judgment overruling a motion to set aside a judgment. The motion by Margaret Kalil (one of the defendants), and the response by Allen Spivey (the plaintiff), in our opinion set forth the issues presented and argued here, with the possible exception of certain other portions of the record, to which we will later refer as we deem necessary in the discussion. The motion to set aside was as follows: "Now comes Margaret Kalil and files this her motion to set aside the judgment rendered in said matter, because: 1. The plaintiff, Allen Spivey, brought this action against the defendants, Kelley Kalil, George Kalil, and Margaret Kalil, alleging the negligence of the defendant Kelly Kalil as being the direct and proximate cause of the alleged injuries sustained by the plaintiff. 2. Plaintiff alleged further that the defendant Kelley Kalil was acting as agent, servant, and chauffeur of the defendants George and Margaret Kalil, at the time of said injuries. 3. All of these facts are shown on the face of the record, and the record shows on its face that the alleged negligence of Margaret Kalil was derived from the driver's, Kelley Kalil's, alleged negligence. 4. The case came on regularly to be tried at the February term, 1943, of the city court of Douglas; and after a jury had been properly selected, chosen, and sworn, after the evidence was submitted, argument of counsel and the charge of the court, the case against all three of the defendants, Kelley Kalil, George Kalil, and Margaret Kalil, was submitted to their consideration. 5. After consideration of the case the jury returned the following verdict: `We, the jury, find a verdict in favor of the plaintiff and against the defendant Margaret Kalil damages in the amount of $318. This the 22nd day of February, 1943. R. O. Holton, Foreman.' Thereby the verdict exonerated the defendants Kelley Kalil and George Kalil. 6. Based on this verdict, the court rendered judgment on February 23, 1943, in favor of the plaintiff Allen Spivey, and against the defendant Margaret Kalil, in the amount of $318 principal, $30.85 costs. 7. The alleged injuries and damages resulted from the alleged negligence of the driver, Kelley Kalil. 8. The alleged negligence of this movant, Margaret Kalil, being wholly derivative from the alleged negligence of the driver, she, Margaret Kalil, the alleged owner of the car, would not be liable unless the defendant driver, Kelley Kalil, was liable. 9. The liability of the defendant Margaret Kalil being purely derivative, and dependent entirely on the principle of respondeat superior, a judgment, after exonerating the driver Kelley Kalil, is void and should be set aside as to the principal or master, Margaret Kalil. All of the aforesaid facts appear on the face of the records in said case. Wherefore, movant Margaret Kalil prays: (a) That rule nisi issue, requiring plaintiff, Allen Spivey, to show cause at the April term, 1943, why the prayers of this petition should not be granted and said verdict and judgment set aside. (b) That this verdict and judgment be set aside. (c) That movant have such other and further relief as the court may deem meet and proper. (d) That she be given her reasonable costs."
The court passed an order as follows: "1. Said defendant is hereby required to show cause before the city court of Douglas at the April term, 1943, to be held on the 26th day of April, 1943, at ten o'clock a. m., why the prayers of said petition to set aside the verdict and judgment should not be granted. 2. It is further ordered that a copy of this petition be served upon the defendant, Allen Spivey, by the sheriff of Coffee County. This the 2nd day of April, 1943."
The response by Spivey was as follows: "1. On 24th February, 1943, said Margaret Kalil filed her motion for new trial, alleging therein as the 3rd ground of her said motion for new trial that the said verdict is contrary to law. Said motion for new trial was served on the attorney at law for Allen Spivey, and he acknowledged service thereof on 24th February, 1943, and was set for hearing before the Honorable E. L. Grantham, judge of the city court of Douglas, to be heard on 27th March, 1943, at chambers of said judge. At the time and place of hearing an order was passed by said judge dismissing said motion for new trial, the effect of which order was to deny said motion, and, on the grounds therein stated and on each and every one of said grounds of motion for new trial, the dismissal of said motion constituted an overruling and denial of said motion for new trial, and was an end of the right of the said Mrs. Margaret Kalil to urge the same. 2. The defect urged in the motion to set aside the verdict and judgment in said case was amendable, as said cause could have legally proceeded to verdict by plaintiff's striking of the two parties defendant other than Mrs. Margaret Kalil, and judgment had thereon. The verdict of a jury and the judgment based thereon can not be legally set aside on a motion filed for that purpose, except for non-amendable defects appearing on the face of the record. 3. The motion for new trial set out in paragraph 1 hereof constituted an election of remedies, concluding the movant herein, and foreclosing her right to resort to a motion to set aside said verdict and judgment on all matters put in issue in said motion for new trial, or which under the rules of law might have been put in issue by the motion for new trial in said cause. 4. A judgment based on a verdict may not be set aside until and unless the verdict is set aside in accordance with statutory procedure; and there is no statutory provision for setting aside a verdict other than by a motion for new trial, except as provided in § 6-804 of the Code of Georgia of 1933, and the instant motion to set aside the verdict and judgment does not come within the provisions of said Code section. 5. The degree of negligence chargeable as a basis of liability for his torts is different for a minor from the degree of negligence chargeable as a basis of liability generally applicable to persons who have attained their majority; and since it appears on the face of the record that Kelley Kalil was a minor at the time of the alleged tort, and since the degree of negligence necessary to bind him for damages for his torts is less than the degree that would bind the defendant Margaret Kalil, a verdict and judgment against Mrs. Margaret Kalil, without a verdict against Kelley Kalil, is valid in this case, regardless of the other grounds of attack herein urged to Mrs. Margaret Kalil's motion to set aside the verdict and judgment; as the jury might have found that the degree of negligence of both Kelley Kalil and Mrs. Margaret Kalil was the same, yet that degree of negligence attributable to each while enough to bind the adult, was not enough to bind the minor. Wherefore, respondent, Allen Spivey, prays that these grounds of attack on movant's motion to set aside said verdict and judgment be inquired of by the court, and that said motion be denied, overruled, and dismissed."
The bill of exceptions recites: "A motion to set aside said verdict and judgment, with a rule nisi signed by the judge of the city court of Douglas, was filed on the 2nd day of April, 1943, which motion to set aside was ordered to be heard at the April term, 1943, of the city court of Douglas. To this motion to set aside, filed by Margaret Kalil, Allen Spivey filed a motion on April 26th, 1943, asking and praying that the motion to set aside be denied, overruled, and dismissed. Whereupon the motion to set aside came on to be heard at the April term, on May 1st, 1943, of said city court of Douglas, at chambers of the judge of said court; and on May 1st, 1943, the judge of said city court of Douglas, after hearing said case, signed an order at chambers, overruling and dismissing the motion to set aside the verdict and judgment, and to this ruling Margaret Kalil then and there excepted and now excepts.'
It appears from the petition for damages (which is made a part of the record), that Kelley Kalil was the son of George and Margaret Kalil; that he was approximately twenty years of age at the time of the alleged injury, and at that time was using a car owned, as alleged, by his father and mother, that at the time of the alleged negligence, Kelley Kalil was operating the car, having with him certain of his friends. It appears from the record that, when the suit was filed and the verdict and judgment were rendered, he had attained his majority.
Three main issues are presented for decision: (1) whether the judge of the city court of Douglas had jurisdictional authority to grant the order on the motion to set aside the judgment of which complaint is made; (2) whether the movant precluded herself of the right to proceed with the motion to set aside the judgment because she had previously filed a motion for a new trial; (3) whether the court erred in overruling the motion to set aside the judgment.
1. While a motion to set aside a judgment may not be entertained in vacation, yet the petition to set it aside may be presented to the judge in vacation, and a rule nisi or notice may be issued, setting the hearing in term time. The Supreme Court, in Revels v. Kilgo, 157 Ga. 39 ( 121 S.E. 209), dealt with this question under a state of facts similar in many respects to those of the instant case. In the Revels decision the questions here presented were determined adversely to the contention of the defendant in error. The Supreme Court said: "The judgment attacked in this case was one passed in term time, and, although passed in a proceeding begun in vacation, was not null and void for lack of jurisdiction of the judge to pass the same. The hearing of the motion being had, and the judgment being rendered in term time, made the proceeding a matter in term; and if the original proceeding was a bastard in the law, it was duly adopted by the judge in term time, and its legitimacy was thus fully established." In the present case the response to the rule nisi was admittedly made at the regular April term of the court. Revels v. Kilgo, supra, is also authority for holding that the motion to set aside the judgment in the instant case having been duly set down for hearing during the April term, but not finally disposed of until May 1 next thereafter, it is presumed, nothing affirmatively appearing to the contrary, that such order as was necessary to retain jurisdiction of the case was passed to extend the April term until May 1, the date of the judgment of which complaint is made. This point was raised in the Revels case, and the court said: "It can properly be presumed that all necessary and proper steps, including an order setting the hearing down in vacation, were taken at the August term of the court, on the principle that where a court of general jurisdiction has rendered a judgment, it is presumed, until the contrary is affirmatively shown, that the court had full jurisdiction in the premises and had before it all facts necessary to make the judgment valid and binding." In the instant case it does not affirmatively appear that such jurisdiction was not retained, but to the contrary it does affirmatively appear from the bill of exceptions that the judgment of May 1 was rendered during the April term. The bill of exceptions recites: "Whereupon the motion to set aside came on to be heard at the April term, on May 1st, 1943, of said city court of Douglas." On this same principle this court, in Cox v. Bank of Ochlochnee, 67 Ga. App. 854 ( 21 S.E.2d 485), said: "Error must affirmatively appear; and since error does not affirmatively appear, this court can not hold that the trial judge erred in granting a new trial on the ground that no brief of the evidence had been filed. Since the court passed on the motion for new trial and granted a new trial, in the absence of anything to the contrary there is a presumption in favor of the court's jurisdiction to entertain the motion for new trial and to pass on it."
2. It is contended, since the plaintiff in error filed a skeleton motion for a new trial (no brief of the evidence having ever been offered for approval), which was dismissed by the court on the ground that the movant had abandoned the motion for a new trial that the law would not permit her to file a motion to set aside the judgment. A motion for a new trial without a brief of the evidence is a nullity. In Whitaker v. State, 138 Ga. 139 ( 75 S.E. 254), the Supreme Court, in response to a question certified by this court, said: "There are many decisions of this court to the effect that a brief of the evidence is an indispensable statutory requisite to a valid motion for a new trial. In other words, if there is no brief of evidence, no motion for a new trial exists." Moreover, it is permissible to prosecute at the same time both a motion for new trial and a motion to set aside the judgment. Turner v. Shackelford, 43 Ga. App. 271 ( 158 S.E. 439); Ezzard v. State, 11 Ga. App. 30 ( 74 S.E. 551). The plaintiff in error was not precluded, for any reason shown, from prosecuting her motion to set aside the judgment.
3. It is provided in the Code, § 110-702, that a motion to set a judgment aside may be made for any defect not amendable which appears on the face of the record or pleadings. Such motion shall be made within three years from the rendition of said judgment. § 3-702. The question to be determined here is whether or not the verdict in favor of Kelley Kalil had the legal effect of rendering void the verdict against the plaintiff in error. It is clear that the plaintiff in the trial court sought to establish liability of the plaintiff in error under the "family-purpose doctrine." It is a well-settled principle of law that where the liability of a principal, or master, to a third person is purely derivative, and depends entirely upon the principle of respondeat superior, a judgment on the merits in favor of the agent or servant is conclusive, and a judgment against the principal or master is unauthorized. In Southern Railway Co. v. Harbin, 135 Ga. 122 ( 68 S.E. 1103, 30 L.R.A. (N.S.) 404, 21 Ann. Cas. 1011), it was held that in an action against a railway company and its servants, to recover damages for the homicide of the plaintiff's son solely in consequence of the servant's misfeasance, where a verdict was returned, finding the servant not liable, but finding in favor of the plaintiff against the railway company, such a verdict should be set aside and a new trial granted.
"In this joint action against a railway company and its engineer and fireman, to recover damages for the homicide of the plaintiff's husband, the evidence demanded a finding that the only acts of negligence, if there were any such acts which were the proximate cause of the homicide, were committed by the engineer and fireman. Therefore the verdict exonerating the engineer and fireman, but finding the railway company liable, was unauthorized." Southern Railway Co. v. Nix, 62 Ga. App. 119 ( 8 S.E.2d 409). It has been held by this court on numerous occasions that a principal is not liable for injury caused by the agent, if the agent is not liable. See Roadway Express Co. v. McBroom, 61 Ga. App. 225 ( 6 S.E.2d 460), and cit.
The petition in the suit for damages against the plaintiff in error in which her son and her husband were joined as parties defendant, alleged that their then minor son was driving the car with the express or implied permission of his parents, and that it was his negligence in operating the car that caused the damages for which the verdict was returned. Is the principle of master and servant, or of principal and agent, applicable in this case? "It is the practice of parents to provide for their children healthful and innocent amusements and recreations, and certainly it is as much the business of parentage to supervise and control the pleasures of their children as it is to give them nurture and education . . if a father or mother owning an automobile and keeping it to be used for the comfort and pleasure of the family, should authorize a son to drive it for the comfort or pleasure of the family, this would make the owner liable for the negligence of the son operating the machine for such purpose." Griffin v. Russell, 144 Ga. 275 ( 87 S.E. 10, L.R.A. 1916F, 216, Ann. Cas. 1917D, 994). "This principle, called variously `family-purpose doctrine,' `family-service rule,' `family-automobile doctrine,' has been judicially considered in practically every State in the Union. . . Liability under this rule in Georgia and in other States is not founded on the existence of a family relationship, but upon the principles of the law of agency, or of master and servant. . . However, when the head of the family makes it his `business' to entertain or furnish pleasure to members of his family, a liability arises under the law of principal and agent, and of master and servant. No hard and fast rule can be laid down to determine what is the `business' or `scope of employment' of a parent as applied to members of his family. See, in this connection, Lacey v. Forehand, 27 Ga. App. 347 ( 108 S.E. 247). It is now well settled in this State that where a parent maintains an automobile for the comfort and pleasure of his or her family, a minor child operating the car for his or her pleasure is about the master's business, and the master is liable for injury occasioned by the minor child's negligent operation." Kennedy v. Manis, 46 Ga. App. 809 ( 169 S.E. 319), following Griffin v. Russell, (supra). This doctrine has been held to apply to a married woman who owns a car, where she allows her minor son to use her car, even though she is living with her husband. Ficklen v. Heichelheim, 49 Ga. App. 777 ( 176 S.E. 540). It is therefore clear that Margaret Kalil, the owner of the car which was being driven by her son at the time of the incident complained of, was the principal or master, and her son was her agent or servant, and acting within the scope of his employment, or on her business, in contemplation of the law; and under the allegations of the petition showing liability of the defendant to be dependent upon the alleged negligence of the agent, the only acts of negligence were committed by Kelley Kalil, the minor son, who was operating the automobile at the time of the collision and the ensuing damage to Allen Spivey; and under the authority of the decision in Southern Railway Co. v. Grizzle, 124 Ga. 735 ( 53 S.E. 244, 110 Am. St. R. 191), the negligence alleged in the original suit constituted misfeasance upon the part of the mother's son, her agent and employee, and her codefendant. If he was guilty of the negligence alleged, his mother was, of course, liable upon the principle of respondeat superior. The mother herself was not and could not have been guilty of any negligence independently of the acts of misfeasance of her son. By the verdict Kelley Kalil (the son) was found not guilty of negligence causing the damages to the defendant in error; and where the codefendant was not and could not have been guilty as respondeat superior, we do not think that liability could be imputed to her where her employee or servant was exonerated when he alone performed the acts which constituted the basis for the charge of negligence. Since the jury completely exonerated Kelley Kalil, it automatically exonerated his mother, who was his master and employer. Therefore the verdict was repugnant in finding the servant not guilty, and the master guilty of the alleged negligence. The verdict against Mrs. Margaret Kalil was void, and the judgment based thereon could be attacked in a motion to set it aside. The court erred in overruling the motion.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.