Ford Motor Company v. Hanley
Ford Motor Company v. Hanley
Opinion of the Court
Appellant Ford Motor Company (Ford) cross appeals from certain rulings of the trial judge during the trial, referred to in Hanley v. Ford Motor Co., 128 Ga. App. 307.
Enumerated errors 1 and 2 complain of the trial judge’s failure to order the instant and immediate production of a statement taken from the young lady passenger in defendant Pritchett’s automobile at the time of the accident and who was a witness in the case for defendant Pritchett.
A brief chronology will assist in reaching a full appreciation of the situation that confronts us. The accident in question occurred on February 6, 1970, as
Ford made a motion to compel the immediate production of the statement. The trial judge overruled the motion, holding that the statement constituted the "work product” of the attorney.
1. The leading cases on "work product” are Hickman v. Taylor, 329 U. S. 495 (67 SC 385, 91 LE 451) and Atlantic C.L.R. Co. v. Daugherty, 111 Ga. App. 144 (141 SE2d 112). In Hickman, the U. S. Supreme Court declined to require discovery of oral and written statements of witnesses whose identity was well known, private memoranda, and personal recollection of adverse counsel. In so doing, the court noted, "For present purposes, it suffices to note that the protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation.. . We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case,
In Daugherty, this court, in a full bench opinion, pointed out the confusion that has arisen in the decisions of the state and federal courts due to the interchangeable use of the terms "privileged” or "work product,” "good cause” and "necessity or justification,” and discussed each fully. Obviously, the statement sought to be discovered here was not privileged, but what about "work product?” In Daugherty, on p. 154, this court, in discussing "work product,” observed that the purpose of that doctrine is "to protect the attorney’s preparation for trial from discovery. ” The court went on, saying, "These statements in a manner of speaking and in the broadest sense may be in anticipation that some litigation may ensue or that it may become necessary to prepare for the defense of a suit, but they are not the 'work product’ of the lawyer.” Both Hickman and Daugherty point out that it is not necessary for a statement to be taken by an attorney for it to be "work product” and that all statements taken by attorneys are not work product.
It is our opinion that, under the decisions in Hickman and Daugherty, the statement was not part of the attorney’s "work product” and was discoverable. However, even if this is not the correct view, the status of our present discovery statutes removes any possibility of doubt. Discovery may be had of "any matter, not privileged, which is relevant to the subject matter involved in the present action.” Code Ann. § 81A-126 (b) (1) (Ga. L. 1966, pp. 609, 635; 1967, pp. 226, 233; .1972, p. 510). Discovery may be obtained of documents "prepared in anticipation of litigation or for
2. Enumeration of error 3 is meritorious. Code §§ 38-1708 and 38-1710 set forth the rules governing opinion evidence and expert witnesses. It has been long settled that the probative value of opinion evidence is for the jury. Hays v. State, 16 Ga. App. 20 (5) (84 SE 497). "The jury can believe opinion evidence or expert testimony in part or in whole or reject it in favor of other evidence. They can give it such weight as they think it ought to have. They can disregard it and substitute their own knowledge and experience.” Holmes v. Harden, 96 Ga. App. 365, 371 (100 SE2d 101).
3. Enumeration of error 4 complains of a comment by the trial judge in a colloquy with counsel that "If a manufacturer puts out a car and it’s got 120 miles per hour speed limit, I presume they would expect it to be driven 120 miles per hour, wouldn’t they?” This does not amount to an opinion by the trial judge as to what has or has not been proved or an expression upon the merits of the case, as prohibited by Code § 81-1104 and cases to that effect. The trial judge did not abuse his
4. Enumerations 5 and 6 pertain to the admissibility of plaintiff’s exhibit 26, which is a page of advertising concerning the type or model of Ford car driven by defendant Pritchett at the time of the accident in this case. The advertisement sought to acquaint the buying public with the characteristics of this model car and point out that, with certain modification, it could be changed into a racing stock car. The admission of the exhibit was not error where coupled with the judge’s instruction to the jury, limiting the admissibility to the question of "alleged improper design.” Evidence itself irrelevant may nevertheless be so interwoven with relevant testimony as to require the submission in elucidation of the relevant. Hodnett v. Hodnett, 99 Ga. App. 565 (109 SE2d 285). "Evidence which is only indirectly relevant to the issues on trial, but which tends to somewhat illustrate it- and to aid the jury in arriving at the truth of the matter should be admitted.” Williams v. Young, 105 Ga. App. 391, 395 (124 SE2d 795).
5. Enumerations 7 and 9 are not meritorious. The trial judge correctly overruled Ford’s motion for directed verdict and correctly submitted to the jury issues of Ford’s negligence. The evidence presented issues of fact for resolution by the jury.
6. Enumeration of error 8 complains of the following portion of the judge’s charge: "I charge you that collisions with or without the fault of the operator of a motor vehicle are clearly foreseeable by the manufacturer and are statistically inevitable,” on the ground that there was no evidence to support it. The automobile in question was a 1970 Ford "Boss” Mustang. It was characterized by one attorney in his argument in this court as "a rocket.” There was ample evidence before the jury to substantiate this
7. Enumeration 10 cites as error the trial judge’s instructing the jury that, in the event they found Ford negligent, "they would be authorized and should findfor the plaintiff,” rather than "they would be authorized and could find for the plaintiff.” (Emphasis supplied.) While we treat this as a "slip of the tongue,” the objection is meritorious, as the word "should” tends to remove from the jury’s consideration all other factors in the case. However, since the jury returned a verdict for Ford, no harm was done. At the next trial, we are confident that the "slip” will not reappear.
For the reason indicated in Divisions 1 and 2, hereinabove, the judgment appealed from must be reversed.
Judgment reversed.
Concurring Opinion
concurring specially in Case No. 47639. As to enumeration of error No. 4, I wish to specially concur. There, complaint is made because the trial judge,
It was not contended that the statement was prejudicial, or that it was without evidence to support it. Thus, the objection fails to properly raise the ground upon which this enumeration of error could be sustained.
Reference
- Full Case Name
- FORD MOTOR COMPANY v. HANLEY Et Al.
- Cited By
- 19 cases
- Status
- Published