Beadles v. Bowen, 39473

Citation126 S.E.2d 254,106 Ga.App. 34
Decision Date25 April 1962
Docket NumberNo. 3,No. 39473,39473,3
PartiesC. V. BEADLES et al. v. Juanita S. BOWEN
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court.

1. The allegations of the petition as amended were substantially the same as those in Beadles v. Smith, Ga.App., 126 S.E.2d 250, and a general demurrer thereto was properly overruled.

2. The motion for judgment notwithstanding the verdict was properly overruled as was the motion for new trial on the general grounds. Beadles v. Smith, Ga.App., 126 S.E.2d 250.

3. (a, b) Special grounds 8 and 9 are also controlled by Beadles v. Smith, Ga.App., 126 S.E.2d 250.

4. It is not error for the trial judge to fail to charge on an issue made by the pleadings but unsupported by the evidence.

(a) It is presumed that every man has done his duty in the absence of contrary evidence.

5. (a) Proximate cause is for the jury.

(b) Failure to charge a portion of an applicable statute is harmless where the undisputed evidence clearly shows that the statute has been violated and the jury could not have been misled or confused.

Larry E. Pedrick, John W. Bennett, Waycross, for plaintiff in error.

Memory, Barnes & Memory, S. F. Memory, Jr., Waycross, for defendants in error.

EBERHARDT, Judge.

This is a case arising out of the same facts as those in Beadles v. Smith, Ga.App., 126 S.E.2d 250, and a complete statement of the factual situation may be found there. However, the plaintiff here is the widow of the guest passenger in the car involved. The defendant's general demurrer was overruled and the case proceeded to trial, resulting in a verdict for the plaintiff for $40,000. Defendant moved for a judgment n. o. v. and a new trial on general and special grounds. Both motions were denied.

1. Headnote 1 requires no elaboration.

2. If, as we held in Beadles v. Smith, Ga.App., 126 S.E.2d 250, the evidence did not demand a verdict against the driver of the death car on the ground of contributory negligence, then it must follow that a verdict would not be demanded against the guest. On the same basis, the general grounds of the motion for new trial are not meritorious.

3. (a) Special ground 8 of the motion for new trial is that the court erred in charging the provisions of Code Ann. § 68-1668(a) (Ga.L., 1953, Nov. Sess., p. 597). As was held in Division 5 of the opinion in Beadles v. Smith, Ga.App., 126 S.E.2d 250, any violation of this statute was a factual question to be determined by the jury.

(b) Special ground 9 complains of charges on Code Ann. §§ 68-1710(b) and 68-1705(b) because the defendant's truck was not shown to be on 'that portion of the highway improved, designed, or ordinarily used for vehicular travel' as provided in Code Ann. § 68-1504(1)(c). The charge was authorized under the pleadings and the evidence. Beadles v. Smith, Ga.App., 126 S.E.2d 250, Divisions 2, 4.

4. All but one of the remaining special grounds relate to the decedent's alleged contributory or comparative negligence and will be considered together. Beadles v. Smith, Ga.App., 126 S.E.2d 250, was reversed for the failure of the trial court to charge on this issue as to the host driver. But we are here dealing with the guest passenger and the previous ruling and discussion on this point are, for reasons following, inapplicable. Defendants contend that the court erred in failing to charge, without request, that the plaintiff could not recover: (a) if the death of the deceased resulted from his own negligence (ground 4), (b) if the deceased could have avoided the consequences of the defendants' negligence by the exercise of ordinary care (ground 5), and (c) if the negligence of the deceased equaled or exceeded that of the defendants (ground 6). Also, a general charge on the care a guest is required to exercise for his own safety is said to be erroneous and incomplete, although again no request to charge was made. (ground 7).

It is well settled that the trial court must charge all the issues in a case, even in the absence of any written request. E. g., Beadles v. Smith, Ga.App., 126 S.E.2d 250, division 7 and citations. The issue of failure of the decedent to exercise ordinary care was made by the pleadings in that the defendants affirmatively made this one of their defenses. However, an issue must be made by both the pleading and the evidence, Hardwick v. Georgia Power Co., 100 Ga.App. 38(5), 110 S.E.2d 24, and it is error to charge on an issue made by the pleadings where there is no evidence in support thereof. Western & A. R. Co. v. Branan, 123 Ga. 692(3), 51 S.E. 650; Donald v. Fulton County, 101 Ga.App. 198(2), 112 S.E.2d 829; Dennard v. Styles, 101 Ga.App. 459(4), 114 S.E.2d 317. Specifically, it is error to charge on contributory or comparative negligence when there is no evidence of such negligence. Brooke v. Bowers, 91 Ga.App. 543(1), 86 S.E.2d 341; Parks v. Fuller, 100 Ga.App. 463, 467(2), 111 S.E.2d 755; Bentley v. Buice, 102 Ga.App. 101, 105(2), 115 S.E.2d 706; Sellers v. White, 104 Ga.App. 148(1), 121 S.E.2d 385 and citations. Furthermore, when the defendants pled contributory negligence as an affirmative defense in the case sub judice, they had the burden of proving it and to do so they must come forward with some evidence. Stewart v. Maynatt, 135 Ga. 637(2), 70 S.E. 325; McCrackin v. McKinney, 52 Ga.App. 519(2), 183 S.E. 831; Employers Liab. Assur. Corp. v. Sheftall, 97 Ga.App. 398(1), 103 S.E.2d 143. Obviously, since both of the occupants of the car were killed, there were no eyewitnesses and there was no testimony as to the conduct of the host or of the guest at any time proximate the time of the impact, the defendants had a very difficult burden albeit one which they assumed and must carry. All of the circumstantial evidence of the wreck is clearly not sufficient to carry that burden, for the evidence is as consistent with the decedent having exercised due care as it is with his having been contributorily negligent. Healan v. Powell, 91 Ga.App. 787(3), 794, 87 S.E.2d 332; Parks v. Fuller, 100 Ga.App. 463(2), 467, 111 S.E.2d 755, supra, present similar factual situations and sustain this view.

The failure of the defendants to carry this burden of proof would be enough to justify the trial judge's omission of the specified charges. However, in a factual situation such as this, the presumption that every person has done his duty can be utilized for further support. 'Negligence or breach of duty is not to be anticipated, but until the contrary is shown it is to be presumed that every man obeys the mandates of the law and performs all of his social and official duties.' Beavers v. Le Sueur, 188 Ga. 393, 403(3), 3 S.E.2d 667, 673 (emphasis added). Accord: Doe ex dem. Truluck v. Peeples, 1 Ga. 3, 5; English v. Poole, 31 Ga.App. 581(4), 121 S.E. 589; Suddath v. Blanchard & Calhoun, 39 Ga.App. 262(2), 146 S.E. 798; Georgia Cas. Co. v. McRitchie, 45 Ga.App. 697(3), 166 S.E. 49; Knight Drug Co. v. Naismith, 73 Ga.App. 793, 796, 38 S.E.2d 87; Clements v. Hollingsworth, 205 Ga. 153(5), 52 S.E.2d 465; Central Truckaway System v. Harrigan, 79 Ga.App. 117, 127(7), 53 S.E.2d 186. Again, the burden of proof is on the defendants to overcome this presumption by some evidence. Bartow Guano Co. v. Adair, 29 Ga.App. 644(3), 116 S.E. 342.

If it be said, as defendants argue, that plaintiff's husband should have warned the driver that he was driving at an excessive speed, or that he was approaching the parked lumber truck and should continue on the paved highway to the left of it in order to avoid striking it, or that he should have taken any other step calculated to prevent the impending collision with the truck, there is no evidence in the record that he did not do so, and we must presume that in fact he did.

Defendants having failed to carry the burden in either respect, it was not error for the trial judge to fail to charge on the issue of contributory negligence (grounds 4, 5, 6). This ruling also controls the contention that the charge given was erroneous and incomplete (ground 7) in that there was no necessity to give the charge at all. Since a charge was given, it could but have been beneficial to the defendants.

Defendants urge strenuously that Sarman v. Seaboard Air-Line Ry. Co., 33 Ga.App. 315, 125 S.E. 891; is controlling on the proposition that the issue of contributory negligence in a situation such as here must be submitted to the jury. However, as is intimated in headnote 4(a), which intimation is confirmed on examination of the original record in the case, the plaintiff there requested a charge on contributory negligence which was substantially the same as that actually given. The court's ruling merely stands for the proposition that the plaintiff cannot request a charge and later complain if one substantially like it was given. Even if this were not true, the rule in Sarman is a harsh one and we would not be inclined to extend it beyond its facts. The following cases relied on by the defendants are distinguishable in that there was evidence offered relating to the conduct of host and guest, thereby supporting the defense of contributory negligence. Crandall v. Sammons, 62 Ga.App. 1, 7 S.E.2d 575; Hatcher v. Bray, 88 Ga.App. 344, 77 S.E.2d 64.

It is elementary that the negligence of a host driver is not imputable to the guest, unless the guest had some right, or was under some duty, to control the driver's conduct. Roach v. Western & A. R. Co., 93 Ga. 785(4), 21 S.E. 67.

5. Ground 10 urges error on a number of grounds in charging Code Ann. § 68-1670(a)7 (Ga.L.1953, Nov.Sess., p. 598) which provides 'No person shall stop, stand, or park a vehicle * * * in any of the following places: * * *. Within 30 feet upon the approach to [a] * * * stop-sign * * * located at the side of a...

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