Armstrong Furniture Co. v. Nickle
| Decision Date | 24 November 1964 |
| Docket Number | No. 40825,No. 3,40825,3 |
| Citation | 140 S.E.2d 72,110 Ga.App. 686 |
| Parties | ARMSTRONG FURNITURE COMPANY, Inc., et al. v. W. H. NICKLE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Under the circumstances existing in this case, the trial court did not err in admitting in evidence the brief of the testimony of a presently inaccessible witness given at a former trial of the case.
2, 3, 5. There is no merit in the special grounds of the motion for new trial considered in these divisions of the opinion.
4. A husband and wife are not privies within the sense that one is barred from pursuing an independent action for loss of consortium of an injured spouse where the one injured has lost an action based on the cause of the injury by a jury's finding of no liability.
The plaintiff, Nickle, brought this action for damages resulting from a collision involving plaintiff's automobile operated by his wife and a vehicle owned by defendant Armstrong Furniture Company, Inc., and operated by defendant Rule as Armstrong's employee. Plaintiff sought to recover for loss of consortium and services of his wife and for medical expenses and property damage to his automobile. The case was tried before a jury, the jury returned a verdict for plaintiff, and judgment was entered on the verdict.
The defendants except to judgments of the trial court denying their motion for judgment notwithstanding the verdict and overruling their motion for new trial.
Richardson & Doremus, Willis J. Richardson, Jr., Weir D. Walker, Savannah, for plaintiffs in error.
Josephine M. Plunkett, Gilbert E. Johnson, Savannah, for defendant in error.
1. The first special ground of the motion for new trial assigns as error the admitting into evidence over defendants' objections proof of the testimony of Eugene Darnell, a witness on a former trial of the same case.
Prior to admission of the proof of the inaccessible witness' testimony on the former trial the witness' wife testified that the witness was out of the country. This testimony was sufficient to make a prima facie showing of the witness' inaccessibility within the purview of Code § 38-314. Eagle &c. Mfg. Co. v. Welch, 61 Ga. 444, 448(2); Estill v. Citizens & Southern Bank, 153 Ga. 618, 621-625(5), 113 S.E. 552.
Theodore Heriot, a witness offered by the plaintiff, testified that he was the official reporter of the City Court of Savannah, Georgia and that he, in that capacity, had reported a previous trial of this case and had briefed the evidence in that case. Heriot explained the method he used in preparing a brief of evidence and testified to the care he took in assuring the accuracy of testimony included in his brief. It is evident the testimony of the inaccessible witness, Darnell, given on the former trial, as briefed by the court reporter, was that identified by the reporter, and was sufficient to show that the reporter professed 'to remember the substance of the absent witness' testimony on the former trial.'
The testimony as to the inaccessibility of the witness, coupled with the testimony of the official court reporter fulfilled the requirements of Code § 38-314.
2. Special ground 2 complains that the trial court erred in charging the jury as follows: 'The testimony of a witness delivered at a former trial of the same case and between the same parties, when admitted in evidence on the second trial in the absence of the witness, has approbative 1 value as original testimony.' This charge was correct in principle. Maynard v. Rawlins, 45 Ga.App. 91, 163 S.E. 269. Proof of the testimony of Darnell having been properly admitted into evidence, the charge was apt and pertinent.
3. Special ground 3 assigns error upon the following charge to the jury: 'The duty to exercise ordinary care to avoid the consequences of another's negligence does not arise until the person injured knew, or in the course of ordinary care ought to have known of the negligence, or such negligence as apparent, or by the exercise of ordinary care should have been apparent if negligence there was.' (Emphasis added.) The defendants contend that this charge was erroneous 'in that it tends to absolve the plaintiff from any duty to exercise such care until after the actual discovery of the defendant's negligence.' In view of the portion by the charge which we have emphasized, there is no merit in this ground of the motion for new trial.
4. Special ground 4 assigns as error a part of the court's charge to the jury on the ground that the...
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Standard Oil Co. v. Harris, s. 44523
...extent that one will be a binding precedent on the other if they are 'in all material respects the same.' Cf. Armstrong Furn. Co. v. Nickle, 100 Ga.App. 686(4), 140 S.E.2d 72. Now, it is true that regardless of the fact that the relief sought is different and the allegations and theory of n......
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Forrester v. SOUTHERN RAILWAY COMPANY
...Ga.App. 150, 126 S.E.2d 633 (1962); Stephens v. Columbus R. Co., 134 Ga. 818, 68 S.E. 551 (1910). See Armstrong Furniture Co., Inc. v. Nickle, 110 Ga.App. 686, 140 S.E. 2d 72 (1964) involving loss of consortium. The same result has been reached by the Georgia courts where both claims were s......
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Jordan v. Ellis
...been tried before separate juries at different times with the same results reached" there was no error. Id. at 363, 130 S.E.2d at 250. The Nickle case was "expressly disapproved Insofar as it allows inconsistent verdicts from the same jury," in White v. Hammond, 129 Ga.App. 408, 412, 199 S.......
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Bowers v. Estep
...rulings that appellees are entitled to summary judgment on Richard Bowers' discrimination claims. See Armstrong Furniture Co. v. Nickle, 110 Ga.App. 686, 688-689(4), 140 S.E.2d 72 (1964). Judgment affirmed in part and vacated and remanded with direction in McMURRAY, P.J., and COOPER, J., co......