Atlantic Co. v. Taylor
| Decision Date | 14 September 1950 |
| Docket Number | No. 1,No. 32988,32988,1 |
| Citation | 82 Ga.App. 361,61 S.E.2d 204 |
| Parties | ATLANTIC CO. v. TAYLOR |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. In view of the construction placed upon the petition in this case on its prior appearance in this court, and in view of the evidence adduced upon the trial, there was no issue as to whether the plaintiff was an invitee, licensee, or trespasser, and the trial judge did not err in refusing to give in charge the requests relating to such issues.
2. The refusal of the court to give in exact language the requested charge that the only duty devolving upon the defendant was to have exercised ordinary care, and that having shown that it did exercise ordinary care it was not incumbent upon it to go further and show the cause of the explosion or injury, was not error where the charge as given substantially covered the subject matter embodied in the request, and the trial judge did not err in overruling the ground of the motion for new trial complaining of such refusal.
3. Where the plaintiff alleged that he was permanently injured and the defendant in its answer denied this, and where the evidence also made an issue as to whether the plaintiff was permanently or only temporarily injured, and where the judge in his charge to the jury instructed them as to the manner of computing the damages if the plaintiff was permanently injured, it was error requiring a new trial for him to fail to instruct the jury also as to the manner of ascertaining the damages if they should find that the plaintiff was only temporarily injured or disabled.
4. The charge that 'The law imposed upon both the plaintiff and the defendant the duty to have exercised ordinary care and diligence upon the occasion under investigation,' was not erroneous for any of the reasons assigned.
5. Where there was no allegation or issue made as to the defendant having manufactured the ammonia gas it was inapt for the trial court to charge the jury in such a manner as to indicate to them that such was an issue in the case. The parties are entitled to have the case sumitted to the jury solely on the issues made by the pleadings and the evidence.
6. The charge paraphrasing a portion of the opinion of this court rendered upon the prior appearance of this case before this court was not erroneous for any of the reasons assigned.
7. The court did not err in charging that the plaintiff would be entitled to recover, if certain facts were shown, unless the defendant had exercised ordinary care in charging and handling the ammonia tanks. This was not a charge on the burden of proof and did not place an illegal burden on the defendant.
8. Where there was no evidence on which the jury could calculate the amount of diminished earning capacity of the plaintiff in fixing damages, it was error for the trial court to charge on diminished earning capacity.
9. The general grounds of the motion and the ground complaining of the excessiveness of the verdict are not considered.
S. B. Lippitt, Albany, for plaintiff in error.
J. Neely Peacock, Jr., Albany, for defendant in error.
This is an action for damages for personal injuries, allegedly sustained by the plaintiff when two ammonia gas tanks belonging to the defendant exploded while being hauled upon a truck of the defendant in which the plaintiff was riding. The case was previously before this court upon exceptions to rulings on demurrers, and for a statement of the pleadings reference is made to the report of the decision on that occasion. See Atlantic Co. v. Taylor, 80 Ga.App. 25, 54 S.E.2d 910.
Upon the trial of the case in the City Court of Albany before a jury, a verdict was returned for the plaintiff in the sum of $4,750, and judgment was rendered thereon. The defendant moved for a new trial on the general grounds and amended its motion by the addition of what was denominated as one special ground but divided into 15 subdivisions, complaining of certain charges of the court to the jury and of the refusal of the court to charge certain written requests, and that the verdict was excessive. The court overruled the motion and the exception here is to that ruling. Such further reference to the facts and evidence as may be necessary to a decision of the questions presented will be made in the decision.
1. Counsel for the parties in this court argue grounds 4a, 4b, 4c, 4d, 4e, 4f and 4g of the amended motion for new trial together. All of these grounds deal with requests to charge made by the defendant, and under the view we take of the law applicable to this case as declared on the prior appearance of it before this court the exceptions made in those grounds of the motion for a new trial may be treated for decision under one ruling. This court held in Atlantic Co. v. Taylor, supra, that the allegations of the petition confined the cause of action to those circumstances under which the defendant actually knew of the presence of the plaintiff on its truck, that its liability for negligence in the handling of a dangerous agency such as highly charged ammonia gas tanks ran to any one lawfully within the orbit of the danger thus created, and that if the defendant actually knew of the plaintiff's presence on the truck, regardless of his status as a trespasser, licensee or invitee, and injured him as a result of its negligent handling of this dangerous instrumentality it would be liable for such injuries. It was expressly held that, under the pleadings here, cases holding that one does not owe the duty of ordinary care to a guest or one invited by a servant without authority were not applicable to this case. Those rules apply where the injury is occasioned by the negligence of the driver or by a condition of the truck or vehicle. Such is not the case here.
All of the requests to charge enumerated above related to definitions of trespassers, licensees, and invitees, the duty and degree of care owed by property owners to each such class of persons, instructions to the jury as to the effect on the case if the plaintiff, in riding upon the truck, was in a place 'where he had no right to be,' and instructions as to the authority of truck drivers to pick up riders or employ help. We think it is obvious that under the law of this case as decided on the previous appearance of it before this court and as set out above such issues were not properly before the jury under the pleadings. We have carefully read the evidence and find that no issues were raised by it that were not made by the pleadings. The sole issues made by the evidence were whether or not the plaintiff was riding the defendant's truck with the knowledge of the defendant or of its authorized agent, and the extent and duration of the plaintiff's injuries. For these reasons we do not think the trial court erred in refusing to charge as requested and complained of under the grounds of the motion for new trial. The cases cited and relied upon by the plaintiff in error are not applicable to this case under the theory upon which it was tried.
2. Ground 4h of the amended motion for a new trial complains of the refusal of the court to charge the following written request:
Assuming that this charge was abstractly correct as a proposition of law, the court did not err in refusing to give it to the jury. The charge as given was full and complete. The judge began the charge by reading verbatim the pleadings in the case, thus stating fully the contentions of the parties. Elsewhere in the charge he told the jury: and ...
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