Bailey v. Todd, 47209

• Decision Date: 07 July 1972
• Docket Number: No. 3,No. 47209,47209,3
• Parties: Felecia C. BAILEY v. Lucille TODD
• Court: Georgia Court of Appeals

Page 547

191 S.E.2d 547

126 Ga.App. 731

Felecia C. BAILEY v. Lucille TODD.

No. 47209.

Court of Appeals of Georgia, Division No. 3.

July 7, 1972.

Rehearing Denied July 20, 1972.

G. Seals Aiken, Atlanta, for appellant.

Henning, Chambers & Mabry, Edward J. Henning, Peter K. Kintz, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal is in behalf of a minor plaintiff pedestrian from an adverse verdict for the motorist whose car injured the child. On February 3, 1969, the date of the occurrence, plaintiff was 8 years old. Her injuries were received when she was crossing an Atlanta street after descending from an Atlanta Transit System bus. The case was tried for three days before a jury with evidence from both sides which resulted in a verdict for defendant. There are 29 enumerations of error of which 21 relate to the charge of the court. These are herein considered in the order they were presented excepting this court lumps together those which appropriately should be dealt with as a unit in order to limit reasonably the length of this opinion.

1. The first four enumerations deal with evidentiary conflicts. Plaintiff made a motion for a directed verdict supplemented subsequently by a motion for judgment notwithstanding verdict along with a motion for new trial containing the general grounds and a special enumeration of error alleging 'there was not any competent or probative evidence whatever supporting the verdict of the jury of June 17, 1971, for the defendant in this case.' We have read the entire trial transcript of 426 pages and find the trial court was not in error in ruling this case presented questions of fact for determination by the jury. Similar cases on verdicts for defendant motorists involving pedestrian children in which this court has ruled as jury questions the determination of 'legal accident,' and whether the automobile driver was negligent, and whose negligence, if any, be either, was the proximate cause, and whether the child could by the exercise of due care for one of her physical and mental capacity under the circumstances and situation have avoided the consequences of defendant's negligence after it became apparent or should have become apparent to her, are Cohn v. Buhler, 30 Ga.App. 14, 116 S.E. 864; Brewer v. Gittings, 102 Ga.App. 367(5), 116 S.E.2d 500; and Hieber v. Watt, 119 Ga.App. 5, 165 S.E.2d 899.

Testifying for the plaintiff as to the facts of the incident were the minor, her mother, and her sister. For the defendant testimony came from the defendant, a bus driver, the investigating police officer, and a motorist who had followed the Todd vehicle for about two blocks. Even without defendant's testimony which counsel contends should be disregarded as being equivocal and contradictory and as having been successfully impeached, the other evidence in the case unquestionably raises jury issues. The case here in many respects is similar to Etheridge v. Hooper, 104 Ga.App. 227, 121 S.E.2d 323.

'Where the trial judge approves the verdict the sole question for determination by this court is whether there is any evidence sufficient to authorize it.' Adler v. Adler, 207 Ga. 394, 405, 61 S.E.2d 824, 832; Momory v. O'Quinn, 101 Ga.App. 330, 333, 113 S.E.2d 780. See also Neloms v. Carmichael, 125 Ga.App. 331, 187 S.E.2d 555 and Threlkeld v. Whitehead, 95 Ga.App. 378, 98 S.E.2d 76.

'It is our duty to construe the evidence to uphold the verdict instead of upsetting it (citations), particularly if there is any evidence to support it (citation omitted),' Hieber v. Watt, 119 Ga.App. 5, 9, 165 S.E.2d 899, 902.

The trial court ruled correctly as to the first four enumerations of error.

2. In attacking the trial court's charge appellant alleges 21 errors. These cover a wide range even to the extent of arguing that the judge erred in failing to change the gender from 'his' to 'her' in charging the exact verbiage of Code Ann. § 68-1716(a). Appellee has pointed out that with the specific exception which appellant's counsel made to there being 'no ground whatsoever to authorize any charge on accident' that the manner in which appellant's objections to the charge were made fail to meet the requirements of Code Ann. § 70-207(a). In support of his position on this appellee's counsel cited Georgia Power Co. v. Maddox, 113 Ga.App. 642, 149 S.E.2d 393. This court in A-1 Bonding Service, Inc. v. Hunter, 125 Ga.App. 173, 186 S.E.2d 566, specifically disapproved that portion of Georgia Power Co. v. Maddox and any other cases which required a greater particularity of objection than that contained in the Code section. This eliminated any requirement for the objector specifically to state 'the correction needed to cure the error.' But this clarifying decision reiterated the necessity of objections to a jury charge being made in the manner specified by the statute. In Judge Deen's special concurrence he pointed out that the rulings made in cases which he cited therein were not affected by the elimination of the faulty clause 'and the correction needed to cure the error.' Thus, as the special concurring opinion makes clear, it is essential that (1) the grounds of objection must be made known to the court, (2) the grounds cannot be enlarged on appeal to include grounds not urged before the trial court, (3) where no exception is made before verdict error claimed on appeal will not be reviewed unless it is deemed to be substantial and error as a matter of law under § 70-207(c), and (4) that a mere general exception to the charge or a portion of it is insufficient to raise any issue for decision. Our examination of the record discloses that appellant's counsel in the main did not comply with the statutory requirements other than his specificity as to the portion of the charge dealing with 'legal accident.'

During his oral argument appellant's counsel recognized the law on this as being possibly adverse to him and urged upon this court that each enumeration of error should be considered by us under the provisions of Code Ann. § 70-207(c). Motivated in part by the zeal of advocacy as shown by his submission of an extensive 88 page brief and reply brief of 14 pages along with his expressed earnestness in his cause together with the nature of the 29th enumeration which is dealt with hereafter, we have undertaken to consider each of the appellant's enumerations of error. We do not deem it necessary to recite the details contained in each enumeration as we regard it sufficient to state the principles of law which have required us to find no error.

3. As to No. 5, the trial court was correct when it followed its recital of the applicable Atlanta ordinances with the charge 'If you do not believe that the plaintiff violated any of the city ordinances I have just read to you, then you would not consider the ordinances in making up your verdict in the case.' Appellant's complaint of the inadvertent addition of the word 'starting' in one of the three ordinances shows simply a lapsus linguae which was not harmful to plaintiff's case. Service Wholesale Co. v. Reese, 91 Ga.App. 366, 85 S.E.2d 625.

4. Enumeration No. 6 complains of the court having charged on the law of 'unavoidable accident' contending that the evidence shows 'without contradiction' both common law negligence and negligence per se proximately causing plaintiff's alleged injuries and that there was no evidence authorizing such charge. The evidence here was sufficient to bring it within the ambit of Cohn v. Buhler, 30 Ga.App. 14, 116 S.E. 864; Brewer v. Gittings, 102 Ga.App. 367, 116 S.E.2d 500, and Hieber v. Watt, 119 Ga.App. 5, 165 S.E.2d 899, all of which involved pedestrian children hit by an automobile. Under the evidence here the issue of accident was fairly raised and and instruction on the point was proper. See also Eddleman v. Askew, 50 Ga.App. 540, (8), 179 S.E. 247 and Brown v. Mayor & Council of Athens, 47 Ga.App. 820(3), 171 S.E. 730.

5. Enumeration No. 7, argues the court improperly charged the jury on the principle of contributory negligence. As plaintiff was 8 years old at the time of the incident, it was correct for the court to have the jury determine whether she exercised such care for her own safety as its capacity fitted it for exercising in the actual circumstances of the occasion and situation under investigation. Cohn v. Buhler, 30 Ga.App. 14, 116 S.E. 864; Huckabee v. Grace, 48 Ga.App. 621, 173 S.E. 744; Mayor &c. of Madison v. Thomas, 130 Ga., 153(3), 60 S.E. 461, 463; Brewer v. Gittings, 102 Ga.App. 367(5), 116 S.E.2d 500; Etheridge v. Hooper, 104 Ga.App. 227, 121 S.E.2d 323. The court had elsewhere included in its charge the substance of Code § 105-204 as to what constitutes due care in a child of tender years. 'On review the charge must be considered as a whole and each part in connection with every other part of the charge. (Cits.)' Zayre of Georgia, Inc. v. Ray, 117 Ga.App. 396(5), 160 S.E.2d 648, 650. 'A charge torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall.' Brown v. Matthews, 79 Ga. 1, 4 S.E. 13.

6. Enumerations Nos. 8, 9, 10, 11, 17, and 18 complain of the failure of the court to charge in the exact words of the requests submitted by plaintiff. 'It is now well settled that, simply because a request to charge . . . is apt, correct and pertinent, it is not necessarily error to fail to charge it, but the test is whether the court substantially covered the principles embodied therein (cits.) or whether it was 'sufficiently or substantially covered by the general charge' (cit.).' Seaboard Coast Line R. Co. v. Thomas, 125 Ga.App. 716, 718, 188 S.E.2d 891, 894. 'Failure to charge in the exact language requested, where the charge...