Bell v. Camp

Decision Date27 February 1964
Docket NumberNo. 3,No. 40302,40302,3
Citation135 S.E.2d 914,109 Ga.App. 221
PartiesC. E. BELL, for use, etc. v. W. Elliott CAMP et al
CourtGeorgia Court of Appeals

E. J. Clower, Rome, for plaintiff in error.

Matthews, Maddox, Walton & Smith, Oscar M. Smith, Rome, for defendant in error.

Syllabus Opinion by the Court.

PANNELL, Judge.

1. Where, in response to a ruling of the trial court sustaining special demurrers to various paragraphs of the petition and giving petitioner a certain time in which to amend, the petitioner amends to meet the demurrers and the demurrers are renewed to the petition as amended and overruled by the trial court, the petitioner cannot be heard to complaint that the ruling on demurrers prior to the amendment of the petition was erroneous. Barley v. Horton, 149 Ga. 605(2), 101 S.E. 680; Merck v. Jackson, 179 Ga. 859(2), 177 S.E. 748; Massell Realty Co. v. Washburn, 35 Ga.App. 707, 134 S.E. 798; Northwestern Mutual Life Ins. Co. v. Seuttles, Tax Collector, 201 Ga. 84, 85(2a), 38 S.E.2d 786. The Act of 1953, Nov.Sess., p. 82 (amending Code § 81- 1001), and providing that '[e]ither party who amends or attempts to amend his petition or other pleadings in response to order or other ruling of court shall not be held to have waived his objection to such order or ruling but may thereafter take exception thereto as in other cases,' was repealed by the Act of 1962, p. 682.

2. 'While in charging the jury it is not reversible error to merely state correctly the contentions as made by the allegations of the petition, even though some of the contentions may not be supported by the evidence (Armour & Co. v. Roberts, 63 Ga.App. 846, 847, 12 S.E.2d 376, and cit.; Georgia Power Co. v. Sheats, 58 Ga.App. 730, 742, 199 S.E. 582, and cit.; Gledhill v. Harvey, 55 Ga.App. 322(4), 327, 190 S.E. 61, and cit.) yet to instruct the jury on the law of a contention as to which there is no evidence, though the charge be correct in the abstract, is cause for a new trial, unless it is apparent that the jury could not have been misled. Culberson v. Alabama Construction Co., 127 Ga. 599(1), 602, 56 S.E. 765, 9 L.R.A.,N.S., 411, 9 Ann.Cas. 507; Citizens & Southern National Bank v. Kontz, 185 Ga. 131(6), 148, 194 S.E. 536; Gaskins v. Gaskins, 145 Ga. 806(1), 89 S.E. 1080; Poland v. C. C. Osborne Lumber Co., 34 Ga.App. 105(2), 108, 128 S.E. 198, and cit.' Robertson v. Abernathy, 192 Ga. 694, 698(4), 16 S.E.2d 584, 586. In the present case the charge complained of was a charge relating to the theory of accident which was not supported by the evidence, but which was pleaded by the defendant in his answer. The jury found a verdict for the plaintiff. Generally, where there is a finding in favor of the complaining party on the issue charged, the error is harmless and there is no reversible error. Bowen v. Holland, 184 Ga. 718(2), 193 S.E. 233, and cits.; Jackson v. Lipham, 158 Ga. 557(5), 123 S.E. 887; Jackson v. Seaboard Airline Ry., 140 Ga. 277, 283(6), 78 S.E. 1059, 1061. In the latter case, a negligence action, the plaintiff received a small verdict and in her motion for new trail complained of certain charges of the trial court. The Supreme Court, on appeal from an order overruling the motion for a new trial, held: 'In some instances error was assigned on charges to the effect that in certain events the plaintiff could not recover at all. As the jury found that the plaintiff was entitled to recover, and these charges do not seem to affect the measure of damages in case of recovery, it is not apparent that these charges were injurious to her, even if in some particulars there were slight inaccuracies. * * * In view of the fact that the plaintiff obtained a verdict of $2,500 and her dissatisfaction is that the verdict is too small, and in view of the evidence and the general charge, we do not think there is anything in the charges mentioned requiring a new trial.' We find two cases of this court where a plaintiff in a negligence case who received a small verdict complains of an erroneous charge on accident. In Riggs v. Watson, 77 Ga.App. 62, 67(7), 47 S.E.2d 900, 904, this court held: 'Grounds 12 and 13 complain of the charge of the court on the subject of accident. We think this charge was error. It gave the defendants the benefit of a defense not pleaded or sustained by the evidence. See Morrow v. Southeastern Stages, supra [68 Ga.App. 142, 22 S.E.2d 336], and Ault v. Whittemore, 73 Ga.App. 10, 15, 35 S.E.2d 526, and citations therein. Under the pleadings and the evidence the jury was authorized to find, as they did find, that the defendants were negligent in some one or more of the ways alleged by the plaintiff, and that such negligence was the proximate cause of the death of the child as claimed by the plaintiff. Since a jury has determined that the defendants are liable, on evidence which we think clearly authorized such finding, we do not think that the charge on accident was proper. 'The idea of accident excludes responsibility because of negligence.' Seaboard Air-Line Ry. v. Bradley, 125 Ga. 193, 198, 54 S.E. 69, 71, 114 Am.St.Rep. 196. Since accident was not involved under our view of the case, the charge on that subject was probably harmful to the plaintiff in view of the very small verdict for the plaintiff.' The italicized portion of the above holding was quoted in Tallent v. McKelvey, 105 Ga.App. 660, 662 (2), 125 S.E.2d 65. The reversal in both Riggs and Tallent was granted on additional controlling grounds. The error in the charge on 'acciden...

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9 cases
  • Maloy v. Dixon
    • United States
    • Georgia Court of Appeals
    • September 6, 1972
    ...146; Kaylor v. Romines, 85 Ga.App. 839, 841, 70 S.E.2d 395; Beecher v. Farley, 104 Ga.App. 785(3), 123 S.E.2d 184; Bell v. Camp, 109 Ga.App. 221(2), 135 S.E.2d 914; Stynchcombe v. Gooding Amusement Co., Inc., 110 Ga.App. 864, 867, 140 S.E.2d 232; Butler v. Stewart, 112 Ga.App. 293(1), 145 S......
  • Lamb v. Redemptorist Fathers of Ga., Inc.
    • United States
    • Georgia Court of Appeals
    • March 17, 1965
    ...waived his objection to the order and may not now take exception thereto. Smith v. Bugg, 35 Ga.App. 317(1), 133 S.E. 49; Bell v. Camp, 109 Ga.App. 221(1), 135 S.E.2d 914. was negligent in failing [111 Ga.App. 496] to make daily inspections of its premises or, upon the failure to make such i......
  • Mitchell v. Gay, 41074
    • United States
    • Georgia Court of Appeals
    • June 18, 1965
    ...133 S.E. 57; Maner v. Dykes, 55 Ga.App. 436, 441, 190 S.E. 189; Oast v. Mopper, 58 Ga.App. 506, 508(4), 199 S.E. 249; Bell v. Camp, 109 Ga.App. 221, 224(3), 135 S.E.2d 914. If the plaintiff desired further amplification on the point of law charged, she should have submitted an appropriate w......
  • McClure v. Georgia Power Co., 67935
    • United States
    • Georgia Court of Appeals
    • June 20, 1984
    ...resulting in an inadequate verdict. Under the circumstances here the error was harmless. See in this connection Bell v. Camp, 109 Ga.App. 221, 222-224(2), 135 S.E.2d 914; Atlanta Recycled Fiber Co. v. Tri-Cities Steel Co., 152 Ga.App. 259, 267(5), 262 S.E.2d 554; Belluso v. Sunnyland Foods,......
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