Read the following case and answer the following question:
1. Determine which catagories the case falls under. (Civil or Criminal; Procedural or Substantive; State or Federal) Explain why the case falls in the respective categories.
This is a wrongful death action arising from a motor vehicle collision. Plaintiff’s husband was killed when an automobile crossed over the center line of a highway and collided with the pickup truck he was driving.
Plaintiff’s complaint, as amended, alleged in the alternative that either defendant Robert Turkey or defendant Larry Cabbage was driving the automobile negligently at the time of the collision. Additional defendants were Debbie Cabbage, on a theory of negligent entrustment to defendant Turkey, and Emmett Cabbage, under the family purpose vehicle doctrine if defendant Larry Cabbage was found to have been driving at the time of the collision.
The jury returned a verdict against defendants Larry and Emmett Cabbage. These defendants appeal. Held:
1. During the evening of April 20-22, 2018, Cindy Turnip held a party at her parents’ home to celebrate her twentieth birthday. The party was open to anyone who wanted to come and a large number of guests attended. Over 20 gallons of beer were consumed, along with quantities of other alcoholic beverages and some marijuana was smoked.
Defendant Turkey arrived at the party with defendant Larry Cabbage in the automobile which would later be involved in the collision. These two defendants consumed substantial quantities of alcoholic beverages at the party and went outside to a vehicle with a third individual, Cattleman, to share a joint of marijuana. Later, the three rejoined the party. Cattleman testified that later she went outside to talk to defendant Turkey and a third individual, the identity of whom she could not remember. On this occasion the three sat in the automobile which would later be involved in the collision. Cattleman’s boyfriend arrived at the party and she and Turkey left the vehicle and once again returned to the party. Defendant Turkey wanted Cattleman to leave the party with him, but she would not, and he walked out the door. There is little evidence as to the whereabouts of defendants Turkey and Larry Cabbage thereafter.
There was evidence that the windshield of the automobile involved in the collision was cracked above the steering wheel. Fourteen months after the collision and shortly before trial, a few human hairs were removed from the cracked windshield and compared with a known sample of hair taken from the forehead of defendant Turkey. Expert testimony from a Georgia State Crime Laboratory microanalyst was admitted at trial that the hairs taken from the automobile did not match the known sample hairs of defendant Turkey.
There were no witnesses to the collision. After the collision defendant Turkey was found lying in the backseat of the automobile. One of Turkey’s shoes was found under the brake pedal. Turkey was intoxicated (an intoximeter test indicated .22 grams percent). A physician testified that Turkey was too drunk to have been able to drive the automobile at the time of the collision.
There was no direct evidence placing defendant Larry Cabbage at the scene of the collision. There was evidence that defendant Larry Cabbage was absent from the party for a period of time, including the time of the collision. Also a witness testified that when she saw defendant Larry Cabbage in school a couple of days after the collision, he was wearing a hat, his hair was styled differently, and he “had a couple scratches on his forehead.”
“‘When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not . . . submitted any evidence for a jury’s decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims . . .’ Lifely Co. v. Jonny, 2 Ga. App 2 (1922). ‘There must be more than a “scintilla” of circumstances to carry the case to the jury. [Cits.] More than a “scintilla” of circumstances “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” [Cit.]’ Cart v. Nat. Life ,3 Ga. App. 3 (1966). The evidence considered by the trial court in ruling on the motion for directed verdict by defendant Larry Cabbage, when considered in its entirety, permits a reasonable inference that defendant Larry Cabbage was the driver of the automobile at the time of the collision. Therefore, the trial court did not err in denying defendant Larry Cabbage’s motion for directed verdict submitted at the close of the plaintiff’s evidence.
1. Defendant Larry Cabbage enumerates as error the admission of the evidence as to the comparison of the hair sample taken from the automobile 14 months after the collision. The Whitfield County coroner testified that when he was looking at the automobile, the morning after the collision, he noticed hair in the shattered part of the windshield on the driver’s side. Some 14 months later, prior to his collecting hair from the automobile for purposes of the comparison test, the coroner noticed that the condition of the windshield had not changed since his earlier observation. Although the automobile was accessible to an unknown number of people during the 14 month interval, the coroner’s testimony was sufficient to permit the trial court to determine that it was reasonably certain that no tampering had occurred, and therefore, to admit the evidence. Any doubt remaining as to tampering goes to the weight of the evidence rather than its admissibility. Life Insurance v. Donalds, 4 Ga. App. 4 (1999).
2. Defendant Larry Cabbage enumerates as error the denial of his motion for new trial based on newly discovered evidence. The evidence at issue is a microscopic comparison of hair taken from the automobile involved in the collision and a known sample of hair taken from defendant Larry Cabbage. Such comparison reveals that the hair found in the automobile did not originate with defendant Larry Cabbage. It is incumbent on a party seeking a new trial on the basis of new evidence to show (among other criteria) that it was not owing to the want of due diligence that he did not acquire it sooner. Fickle v. State, 5 Ga. App. 5 (2002). Here, defendant was aware of the hair in the crack in the windshield and the issues arising therefrom over two weeks prior to the trial date. Counsel’s affidavit shows that he attempted to have the hair samples tested by a laboratory recommended by the State Crime Laboratory, but that he was unable to have tests completed prior to trial date. The trial court was authorized to conclude that the evidence now submitted should have been obtained prior to trial. Flag v. State, 6 Ga. App. 6. There was no request for delay of trial in order to permit analysis prior to trial. Labor v. Jones, 7 Ga. App. 7. This enumeration of error is without merit.
3. Defendant Emmett Cabbage enumerates as error the denial of his motions for directed verdict, motion for judgment notwithstanding the verdict and motion for new trial. He contends there was no evidence that he made the automobile available for family use. In this regard, he first contends he was not the owner of the automobile, although he acknowledges that the certificate of title issued to him made out a prima facie case as to ownership of the automobile. Defendant Emmett Cabbage argues that the evidence showing the ownership to be in another (his daughter, defendant Debbie Cabbage) overcame the prima facie showing as a matter of law. See Thomas v. Thorn, 8 Ga. App. 8. Contrary to the above argument the evidence before the trial court presented a genuine issue of material fact for resolution by the jury. Norton v. Cralers, 9 Ga. App. 9.
Secondly, he contends that even if he is the owner of the vehicle, the evidence was not sufficient to authorize application of the family purpose doctrine. We disagree. The evidence of ownership coupled with the evidence that defendant Larry Cabbage was living at home and subject to his parents’ general supervision, was sufficient to authorize a finding that defendant Emmett Cabbage had the right to exercise authority and control over the vehicle. Nuttlebaum v. Brond, 10 Ga. App. 10. These enumerations of error are without merit.
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