Healan v. Powell

• Decision Date: 17 March 1955
• Docket Number: No. 35385,No. 1,35385,1
• Parties: G. P. HEALAN et al. v. Charlie POWELL et al
• Court: Georgia Court of Appeals

Page 332

87 S.E.2d 332

91 Ga.App. 787

G. P. HEALAN et al. v. Charlie POWELL et al.

No. 35385.

Court of Appeals of Georgia, Division No. 1.

March 17, 1955.

Rehearing Denied April 1, 1955.

Syllabus by the Court

1. (a) Where, as here, there is no conflict in the evidence, an that introduced, with all reasonable deductions and inferences therefrom, demands a particular verdict, the court may direct a verdict for the party entitled thereto. Code, § 110-104. Accordingly, the trial court did not err in directing a verdict in favor of the defendant Gay, the evidence with all reasonable inference and deductions therefrom demanding it.

(b) While the testimony as to the reputation of the defendant Powell as a reckless and incompetent driver was admissible against the defendant Gay, its rejection was harmless for the reason that, notwithstanding such evidence, a verdict in favor of Gay would still have been demanded. The evidence was inadmissible against the defendant Powell, who was actually operating the automobile, since it dealt with other transactions not relevant upon the issue of his negligence in this case.

2. Error in improperly admitting evidence is not ground for reversal where the same evidence is subsequently admitted without objection. Accordingly, the trial court did not commit reversible error in admitting in evidence a report of the Georgia State Patrol containing the opinions of the investigating officers, evidence to the same effect having been admitted without objection.

3. (a) It is error requiring reversal to charge that lack of ordinary care for her own safety on the part of a guest riding in an automobile operated by another will reduce or preclude recovery, where there is no evidence authorizing an inference that such guest was negligent in any respect.

(b) The charge of the court on the principles of law relating to the acts of a person suddenly confronted with an emergency, and on the doctrine of last clear chance, was without error.

(c) This court cannot hold as a matter of law that a verdict was demanded for the defendant Powell, in such manner as to render harmless errors in the charge of the court, where the jury might have found from the evidence that the defendant was guilty of negligence per se, and where such negligence, if existing, might have concurred with that of the operator of the automobile in which the decedent was riding in causing her injuries and death.

The pleadings in this case are fully set forth in Gay v. Healan, 88 Ga.App. 533, 77 S.E.2d 47, and need not be repeated. The above decision affirmed a judgment of the trial court overruling general and special demurrers interposed by the defendants to the petition. Suffice it to say that the plaintiffs in separate suits were seeking to recover damages on account of negligence resulting in an automobile collision in which the mother and father of the plaintiffs were killed.

After return on the remittitur to the trial court, the case involving the death of the plaintiffs' mother proceeded to trial. At the conclusion of the evidence the jury returned a verdict in favor of the defendant, Charlie Powell, the trial court having previously directed a verdict in favor of the defendant, Carlus Gay.

The plaintiffs' motion for new trial, which was amended by adding nine special grounds, was denied, and the exception is to that judgment.

Harold E. Ward, Dublin, Johnson & Johnson, Gainesville, for plaintiff in error.

Lester F. Watson, Nelson & Nelson, Dublin, for defendant in error.

NICHOLS, Judge.

1. Special ground 8, in which it is contended that the trial court erred in directing a verdict in favor of the defendant Carlus Gay, and special grounds 1 and 2, in which it is contended that the trial court erred in refusing to admit testimony offered by two of the plaintiff's witnesses as to the reputation of Powell as an incompetent driver of an automobile, will be considered together. After the decision in Gay v. Healan, supra, and before the trial, the plaintiffs struck all provisions of the petition in which it was sought to recover against Gay on the theory of respondeat superior, and the case proceeded to trial against the two defendants on the theory that the death of the mother of the plaintiffs was brought about as a proximate result of the negligence of the defendant Powell in the operation of the automobile which collided with the one in which plaintiffs' mother was riding, and the negligence of the defendant Gay in furnishing the defendant Powell with a Ford automobile equipped with a Cadillac motor, which was 'souped up' and as such a dangerous instrumentality; that the defendant Powell was a reckless and incompetent driver of an automobile, which fact was known or in the exercise of ordinary care could and should have been known to the defendant Gay, and that accordingly Gay was liable for these negligent acts.

(a) As to special ground 8, the trial court properly directed a verdict in favor of the defendant Gay because the uncontradicted evidence showed that Gay did not furnish the automobile in question to Powell, but that the latter obtained it from another source without the knowledge of Gay and at a time when Gay was away from his home county. 'Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto.' Code, § 110-104. 'The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole, and of all legitimate inferences therefrom, the verdict against him is demanded.' Sanders Mfg. Co. v. Dollar Sav. Bank, 110 Ga. 559, 35 S.E. 777.

(b) As to special grounds 1 and 2, the rejected testimony might have been admissible against Gay since it was in support of the allegations of the petition as to him. However, proof of the reputation of Powell as an incompetent driver would not have benefited the plaintiff, as the defendant Gay would still have been entitled to have a verdict directed in his favor. However incompetent and reckless Powell may have been as a driver of an automobile, and whatever his reputation in this respect, a verdict would not have been authorized against Gay, since the evidence failed to support the allegations of the petition that the defendant Gay furnished to the defendant Powell the automobile in question, but on the other hand demanded a finding to the contrary. The evidence was not admissible as against Powell, for, in actions arising out of automobile collisions, the issue is the negligence or nonnegligence of the operator at the time and place of the event, and each such transaction is to be ascertained by its own circumstances and not by the reputation or character of the parties. Cox v. Norris, 70 Ga.App. 580, 28 S.E.2d 888; Code, § 38-202. Accordingly, these grounds of the amended motion for new trial are without merit.

2. Special ground 3 complains that a report of the Georgia State Patrol, containing the opinions of the investigating officers, was admitted in evidence over the objection of the plaintiffs. This ground is without merit because evidence to the same effect was admitted without objection. New York Life Ins. Co. v. Ittner, 62 Ga.App. 31(4), 8 S.E.2d 582.

3 (a) Special grounds 4 and 5 complain of certain excerpts from the charge of the court, to the effect that the plaintiffs could not recover if the decedent was not in the exercise of ordinary care for her own safety, and special ground 6 complains of a portion of the charge relating to comparative negligence, or contributory negligence on the part of the decedent such as to bar the plaintiffs from recovery. Since the evidence demanded a finding that Mrs. Healan was a guest in the automobile in which she was riding and could not drive an automobile, and there was no evidence whatever to the effect that she was negligent in any way, it was error to charge these principles of law so as to present to the jury the question of whether the guest passenger had failed to exercise ordinary care for her own safety so as to preclude recovery, or had...