Barnes v. Kittrell

• Decision Date: 27 February 1937
• Docket Number: No. 25959,25959
• Citation: 55 Ga.App. 319,190 S.E. 39
• Parties: BARNES . v. KITTRELL.
• Court: Georgia Court of Appeals

55 Ga.App. 319

190 S.E. 39

BARNES .

v.KITTRELL.

No. 25959

Court of Appeals of Georgia,

Division No. 2.

Feb. 27, 1937.

.

Syllabus by Editorial Staff.

Error from Superior Court, Spalding County; Wm. E. H. Searcy, Jr., Judge.

Action by H. V. Kittrell against O. J. Barnes. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Beck, Goodrich & Beck, of Griffin, for plaintiff in error.

Maddox & Futral, of Griffin, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

The plaintiff brought suit for damages on account of injuries alleged to have been sustained from the negligent operation of an automobile by the defendant. The jury returned a verdict in favor of the plaintiff. The defendant filed a motion for new trial on the general grounds, and by an amendment added two special grounds (a) that the court failed to charge the jury as to the measure of damages except as to pain and suffering, and (b) that the court erred in charging the jury that "if both were negligent, and the negligence of the defendant exceeded the negligence of the plaintiff, then it would become your duty to apportion any damages that you might award to the plaintiff in accordance with what you find to be the degree of fault or negligence attributable to the plaintiff as compared with the fault or negligence that you find attributable to the defendant, " instead of stating to the jury that in the circumstances named the damages found to have resulted should be diminished by the amount attributable to the plaintiff's default. The court overruled the motion and the defendant excepted. Error is assigned only on the two special grounds of the amendment to the motion for new trial. Held:

1. While counsel for plaintiff in error state in their brief that "the only issues of law involved are raised by the amended motion for a new trial, which contains only two grounds, " still they say in another portion of their brief that the general grounds of the original motion are equivalent to alleging that the verdict was excessive. It was decided in Central of Georgia Railway Company v. Berry, 114 Ga. 274, 40 S.E. 290, where the record in that court shows that there was no specific ground in the motion for new trial that the damages were excessive, although the motion did contain the general grounds, that the motion did not contain a ground that the damages were excessive. Moreover, this court, under the pleadings and the evidence, cannot say as a matter of law that the damages were excessive.

2. The exception to the failure of the court to charge in detail as to the measure of damages is without merit, it being shown by the...