Barbre v. Scott

• Decision Date: 15 July 1947
• Docket Number: No. 31587.,31587.
• Citation: 43 S.E.2d 760
• Parties: BARBRE. v. SCOTT.
• Court: Georgia Court of Appeals

43 S.E.2d 760

BARBRE.

v.SCOTT.

No. 31587.

Court of Appeals of Georgia, Divisions Nos. 1 and 2.

July 15, 1947.

Rehearing Denied July 29, 1947.

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Syllabus by the Court.

1. In this case, which was an action for damages by a guest in an automobile a-gainst the administrator of his host arising out of injuries received by the plaintiff and his wife in an automobile accident, the jury was authorized to find from the evidence that the deceased was grossly negligent, as alleged in the petition, and that such negligence was the proximate cause of the plaintiff's injuries and damage; and the court did not err in overruling the general grounds of the motion for a new trial.

2. The statement of a driver of an automobile, that it was raining and a number of cars were passing in both directions on the highway and, when his car began skidding and sliding, he became confused and lost complete control over the car, is an admission against his interest and, where the driver dies before the trial, is admissible in evidence in an action between a person injured in the accident and the administrator of the driver, as a declaration of a person, since deceased, against his interest

3. Assuming, but not deciding, that a defendant may assign error on the action of the court in submitting to the jury the allegations of an amendment filed by such defendant to his answer, under the facts of the present case, the court did not err for any reason assigned in reading to the jury the amendment to the defendant's answer.

4, 5, 6. Under the evidence in this case, the court did not err in submitting to the jury the allegations of negligence complained of in grounds 6, 7 and 8 of the motion for a new trial.

7. It is not error for the court, in charging a jury, merely to state correctly the contentions made by the allegations of the petition, even though some of the contentions may not be supported by the evidence.

8. The refusal to give a requested instruction, which was substantially covered in the general charge to the jury in so far as pertinent and applicable to the pleadings and the evidence in the case, was not error.

9. A charge to the jury of a correct principle of law, although it may not be applicable to any issue made by the pleadings and evidence, is not ground for a new trial, where it does not appear that such charge could have influenced the verdict against the complaining party.

10. It is not cause for a new trial that the court instructed the jury as to that portion of the Code, § 105-2003, which provides, "In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors, " where it appears that the court in other portions of his charge gave the jury accurate and proper rules for the different kinds of damages sought in the petition and confined the application of the rule above set out to such damages as physical and mental pain and suffering and the like.

11. The verdict is supported by the evidence and has the approval of the trial judge, no error of law appears, and the judge did not err in overruling the motion for a new trial.

MacINTYRE, P. J., and FELTON, J., dissenting.

Error from City Court of Albany; Clayton Jones, Judge.

Action by II. F. Scott against Joe Bell Barbre as administrator of the estate of W. M. Scott, deceased, to recover for injuries sustained by plaintiff and to recover for medical and hospital expenses incurred on account of injuries sustained by plaintiff's wife in an automobile accident and also to recover for loss of services of plaintiff's wife because of such injuries. To review a judgment for plaintiff, defendant brings error.

Affirmed.

See also Ga.App., 43 S.E.2d 771.

H. F. Scott sued Joe Bell Barbre, as administrator of the estate of W. M. Scott, deceased, for damages in the City Court of Albany. His petition was brought in three counts. In count 1, he sought to recover damages for certain personal injuries allegedly sustained by him in an automobile accident. In count 2, he sought to recover for medical and hospital expenses incurred and paid by him on account of injuries sustained by his wife in said accident. In count 3, he sought to recover damages for the loss of the services of his wife on account of her injuries. The petition alleged in substance that the plaintiff, his wife and four other guests were riding in an automobile owned and operated by the plaintiff's father, W. M. Scott, the deceased; that they were traveling from Albany to Cordele for the purpose of visiting a sick sister of the deceased; that they left Albany at about 7:00 p. m. on November 19, 1944, at which time it was dark; that the deceased was in a hurry to make the trip; that at a point approximately two miles west of Sylvester, it began raining and the pavement became slick by reason of such rain; that the deceased was familiar with the highway; that there was a curve going eastward, which was the direction they were traveling; that the curve began immediately east of a concrete bridge; that at a point on the curve, the car operated by the deceased began to slip and slide for about 100 yards and the deceased failed to decrease the speed of the automobile and it went off of the pavement to the left and through an excavation about four feet deep and into a pine tree, which was located about 130 yards from said bridge; that the deceased was grossly negligent in that (a) the deceased, with full knowledge that the automobile was crowded and that it was dark and had been raining, and was raining at the time, and that the pavement was slick, slippery and highly dangerous to travel upon, and that the back tires on the automobile were worn and slick, and with full knowledge of said highway and curve, was operating the automobile at a highly negligent, dangerous and unreasonable and excessive rate of speed of at least 50 miles per hour; (b) that the deceased was negligent in rounding a curve at a speed in excess of 50 miles an hour and in not slowing up the speed of said automobile, as required by the provisions of the Code, § 68-303, subd. e, which was gross negligence and negligence per se; (c) that the deceased was grossly negligent in driving said automobile across the paved highway and into an excavation about four feet deep and in not operating said automobile on the right hand side of the pavement; (d) that the deceased was grossly negligent in that he was an habitual user of eyeglasses and was driving his automobile without them on the paved highway in the nighttime in the rain at a rate of speed in excess of 50 miles an hour where his view ahead was obstructed by reason of his defective eyesight, as he had broken his glasses prior to said trip; and (e) that the deceased was grossly negligent in operating his automobile in the manner aforesaid when his windshield wiper was not operating and the view ahead was obstructed by reason of rain on the windshield and that the same tended to obstruct the vision of the driver and it was impossible to keep a proper lookout ahead. The plaintiff sought to recover a judgment against the defendant on each count of his petition.

The defendant answered and denied substantially the allegations of the petition. By an amendment, the defendant set out that the only asset of the estate was a certain liability insurance policy issued by the Glens Falls Indemnity Company, and that he had no other assets belonging to the estate in his hands to be administered.

On the trial, there was evidence from which the jury was authorized to find that the deceased and two other persons were occupying the front seat of the deceased's automobile, while the plaintiff, his wife and two other persons were in the rear seat; that the deceased was driving; that it was dark when they left Albany and that it commenced to rain prior to the accident; that the rear tires on the automobile were slick; that the deceased ordinarily wore eyeglasses when he was reading or driving, but that he only owned one pair of glasses and these were found at his home after the accident; that the plaintiff sustained personal injuries when the car left the road to the left hand side and went through an excavation about four feet deep and into a pine tree standing near the road; that the plaintiff's wife was also injured and that the plaintiff had paid certain hospital and medical bills on account of her injuries and that her ability to perform services around the home had been substantially diminished. There was also evidence that the deceased, while in the hospital after the accident, had stated to a witness that "it had been raining and that he was driving his car and a number of cars were passing on the highway in both directions. He, W. M. Scott, when his car began skidding and sliding, became confused and he lost complete control of his car and was not definitely sure of what happened." There was also evidence as to the condition of the car after the accident and that the car was going SO miles an hour at the time of the accident, which testimony as to the speed of the car was based on the condition of the car after the collision and the conditions which existed at the place it crashed into the pine tree. Certain photographs were also placed in evidence to show the condition of the car after the accident and the physical surroundings at the scene of the accident.

There was testimony to the effect that the attorneys for the plaintiff and the defendant had agreed that in the event of a recovery in the pending suit, the judgment would be so written as to be collectible out of the proceeds of the policy and any other and further assets that might come into the hands of the administrator to be administered, but that the plaintiff would not seek to attach any personal liability to the defendant administrator on account of any judgment rendered in said case.

The jury returned a...