Bart v. Scheider, (No. 19371.)

• Decision Date: 06 March 1929
• Docket Number: (No. 19371.)
• Citation: 147 S.E. 430,39 Ga.App. 467
• Parties: BART v. SCHEIDER.
• Court: Georgia Court of Appeals

39 Ga.App. 467

147 S.E. 430

BART

v.SCHEIDER.

(No. 19371.)

Court of Appeals of Georgia, Division No. 1.

March 6, 1929.

(Syllabus by the Court.)

Error from City Court of Savannah; John Rourke, Jr., Judge.

Suit by A. W. Scheider against Mrs. Bertha S. Bart, trading under the name of Bart's Bakery. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error. Affirmed.

A. W. Scheider brought suit against Mrs. Bertha S. Bart, trading under the name of Bart's Bakery, and alleged that an automobile truck belonging to the defendant, and being driven by one of her employees at a speed of approximately 25 miles per hour, "struck the left hand handlebar of petitioner's son's bicycle and threw petitioner, with great force, against the side of said truck and to the ground"; that at the time his sonwas struck by the truck he "was proceeding on Whitaker Street, in the City of Savannah, a public thoroughfare of said city, Southwardly, at a moderate rate of speed. At the same time and place an automobile truck of the said defendant was proceeding Southwardly on Whitaker Street, at a fast, rapid, and excessive rate of speed.". Petitioner alleges that "at the time and place of the occurrence petitioner's son was in the exercise of ordinary and reasonable care for his own safety, and said injuries thus received by him were due to the negligence and carelessness of the agent and employee of the defendant. The defendant denied liability and said that the injuries to the son of the petitioner, "if sustained as alleged in said petition, were due to the fault and negligence of said petitioner's son."

Petitioner prayed for damages for the loss of services of his son and for certain special damages incurred by him, such as doctors' bills, hospital expenses, etc. Defendant demurred to the petition, some of the grounds of the demurrer were overruled, and others sustained; and the defendant filed exceptions pendente lite, in which error was assigned on the overruling of certain grounds of the demurrer. (With these assignments of error this court is not concerned, as they are not being insisted upon here.) Upon a trial of the case, a verdict was rendered against the defendant. She filed a motion for a new trial. The verdict was for $3,500. The plaintiff voluntarily wrote off $1,000 leaving the verdict to stand at $2,500. Upon the overruling of the motion for a new trial, a bill of exceptions was brought to this court.

Oliver & Oliver and McIntire, Walsh & Bernstein, all of Savannah, for plaintiff in error.

Lawrence & Abrahams, of Savannah, for defendant in error.

BLOODWORTH, J. (after stating the facts as above). [1] 1. The assignment of error that the verdict is excessive cannot be considered, because it "amounts to no more than an amplification of the general ground that the verdict is contrary to the evidence, as it does not point out wherein or for what reason the verdict is excessive." Continental Aid Association v. Hand, 22 Ga. App. 727, 97 S. E. 206. See Callaway v. City of Atlanta, 6 Ga. App. 355 (2), 64 S. E. 1105. In the case just cited, this court held that "assignments of error must be specific, whether contained in a bill of exceptions or in a petition for certiorari." See section 5199 of the Civil Code of 1910. Moreover, "the excess in the amount of the original verdict for damages in this case did not necessarily indicate that it was induced by bias or prejudice; and it appearing that the plaintiff voluntarily wrote off enough of the amount to bring it within the measure of damages proved, the court did not err in refusing to grant a new trial be cause of the excessive verdict." Bugg v. Harper, 36 Ga. App. 39, 135 S. E. 109.

2. The amendment to the motion for a new trial, ground A, is as follows: "That the court erred in charging the jury as follows: 'I charge you that if the defendant violated either one or both of these ordinances, and the evidence which you believe has disclosed that fact to you, he would be guilty of negligence under the law, and the law which places a liability upon him for such negligence, provided, however, that by the use of ordinary care and diligence, the plaintiff could not have avoided the injury to himself.' " This is alleged to be error, "for the reason that the negligence of the son was an issue and not the negligence of the plaintiff himself." Practically the same error is alleged in special grounds C, D, and E. The use of the word "plaintiff" instead of the words "plaintiff's son" was evidently a mere lapse of the tongue; and mere inaccuracies of expression or slight errors which are not likely to obscure the meaning of the court or mislead the jury will not authorize this court to set aside a verdict where the charge is otherwise correct. In view of the allegations of the petition, the answer, the evidence, and the entire charge, we do not think the jury could have been misled by this slight lapse of the tongue. Louisville & Nashville Railroad Co. v. Culpepper, 142 Ga. 275 (2), 276 (2), 82 S. E. 659, and cases cited; O'Dell v. State, 120 Ga. 153 (2), 47 S. E. 577; Central of Ga. Ry. Co. v. Hartley, 25 Ga. App. 112 (8), 103 S. E. 259; Dawson Pecan Co. v. Montezuma Fertilizer Co., 19 Ga. App. 44 (11), 90 S. E. 984.

3. In instructing the jury upon the impeachment of witnesses, the judge gave in charge section 5880 and section 58S1 of the Civil Code of 1910. The court is alleged to have erred in instructing the jury that, "where a witness is not impeached except by disproving the truth of his evidence or by testimony tending to disprove it, such witness cannot be supported by proof of his general good character."

(a) In so far as section 5880 is concerned, this criticism is not applicable. Sections 5880 and 5881, as given in charge to the jury, were separated by a period, and each is given in its entirety. Correctly construing the charge, the words, "when a witness is thus impeached he can be sustained by proof of general good character, the effect of same to be determined by the jury, " are a part of section 5881, and relate to that section only The charge as given does not qualify section 5880. Even should we grant that this part of the charge could be construed as applying to section 5880, the charge would be harmless, as the jury could not have been misled thereby, for the reason that there was no evidence introduced or offered to sustain any witness by proof of good character.

(b) Nor was there error in reading to thejury all of section 5881. As is said above, the judge is alleged to have erred in giving in charge the last clause of section 5881. The reading of this clause to the jury is specifically alleged to be error because there was no evidence of the good character of the witness whose testimony was attacked, and it is insisted that "in the absence of good character such charge was erroneous." On the trial there was no attempt to establish the credibility of any witness by proof of good character. In Helms v. State, 136 Ga. 803, 72 S. E. 247, Presiding Justice Evans said: The judge "read the entire section of the code [Penal Code of 1910, § 1052; Civil Code, § 5881] the last sentence...