Bell v. Camp
Decision Date | 27 February 1964 |
Docket Number | No. 3,No. 40302,40302,3 |
Citation | 135 S.E.2d 914,109 Ga.App. 221 |
Parties | C. E. BELL, for use, etc. v. W. Elliott CAMP et al |
Court | Georgia 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.
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 (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to have waived his objection to such order or ruling but may thereafter take exception thereto as in other cases,' was repealed by the Act of 1962, p. 682.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. 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: 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: 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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