Bell v. Lewis, 31269.

• Decision Date: 13 June 1946
• Docket Number: No. 31269.,31269.
• Parties: BELL. v. LEWIS.
• Court: Georgia Court of Appeals

38 S.E.2d 686

BELL.

v.LEWIS.

No. 31269.

Court of Appeals of Georgia,

Division No. 2.

June 13, 1946.

Syllabus by the Court

1. Where there is uncontradicted evidence that the plaintiff, a minor, had been manumitted prior to the accident and he brings suit through his father as next friend praying damages for personal injuries, hospital and physician expenses, and diminution of earning capacity, it will be conclusively presumed that the father has consented and acquiesced in the manumission of the plaintiff from the date of the injuries to the date of the plaintiff's majority, and it was not error for the court to charge upon the recovery of the reasonable value of hospital and physician expenses, nor was it error for the court to fail to charge, under the facts of this case, that before the plaintiff could recover for personal injuries and diminution of earning capacity he must first show that he had been manumitted for the period from the date of the injuries to the date of his majority.

2. Where the evidence is conflicting, the questions of negligence, contributory negligence, and proximate cause are for the jury, and where it finds that the defendant was negligent in blinding the plaintiff by failure to dim his lights and that such negligence was the proximatecause of the plaintiff's driving to the left of the center line of the highway and colliding with the defendant's truck, we cannot say as a matter of law that this finding was unauthorized.

3. While under some circumstances it might be found to be negligence as a matter of fact for four persons to occupy the front seat of an automobile being driven on the highways, in the absence of statutory prohibition it is not negligence per se, and where there is some evidence to authorize the finding of the jury that such occupancy was not negligence, under the facts of this case, and in no way contributed to the accident, we cannot say as a matter of law that such finding was unauthorized.

Error from Superior Court, Seminole County; C. W. Worrill, Judge.

Suit by Oscar Lewis, a minor, by his next friend, Walter Lewis, against Ben Bell to recover damages for personal injuries resulting from a collision between the automobile of the plaintiff and the truck of the defendant. To review the judgment, the defendant brings error.

Affirmed.

Oscar Lewis, a minor, by his next friend, Walter Lewis, brought suit in the Superior Court of Seminole County against Ben Bell to recover damages for personal injuries resulting from a collision between the automobile of the plaintiff and the truck of the defendant. The plaintiff alleged substantially the following: On the night of February 3, 1945, a collision occurred between the plaintiff's Model A Ford roadster, driven by the plaintiff, and the defendant's truck, driven by Forrest Hand, agent of the defendant; the collision occurred within the corporate limits of the City of Donalsonville, on State Highway No. 38; the plaintiff was without fault and the defendant and his agent were negligent in that the driver of the truck failed to dim his lights, allowing the bright lights to remain on, thereby blinding the plaintiff who was meeting the truck on the highway; the truck was being operated at the reckless and excessive rate of from fifty to fifty-five miles per hour, and the driver did not have it under immediate control; the plaintiff sustained the injuries enumerated, which will totally incapacitate him for a year and thereafter his earning capacity would be greatly reduced; the plaintiff had incurred hospital and physician expenses of approximately $500, and damaged in the total sum of $15,000. The defendant filed his answer of general denial and answered that the plaintiff was driving the automobile while under the influence of intoxicating beverages; that the front seat of the plaintiff's automobile was occupied by the plaintiff and three other persons, making a total of four; and the plaintiff was driving on the wrong side of the road, all of which constituted negligence on the part of the plaintiff such as to preclude any recovery by him. The defendant filed no demurrers. On the trial of the case verdict and judgment were entered for the plaintiff in the amount of $3,000. The defendant filed his motion for new trial upon the general grounds and amended the same to include the following special grounds: (1) Because the verdict is contrary to law for the reason that the plaintiff, a minor, sued for personal injuries without first showing that he had been manumitted and that his earnings from the date of the injury to the date of his reaching his majority would have belonged to him. (2) The plaintiff, a minor, sued for doctor's bills and hospital services, and some part of this amount was evidently incorporated in the verdict of the jury, when as a matter of law, the plaintiff being a minor, the legal obligation to pay for the medical and hospital expenses was upon the father. (3) Because the court erred in charging on the question of recovery of medical and hospital expenses. (4) Because the court erred in failing to charge, without request, that before the plaintiff could recover for personal injuries for the period from the date of the injuries to the date of his majority, it was encumbent upon him to show that he had been manumitted. (5) Because the court erred in failing to charge, without request, that before the plaintiff could recover for personal injuries and diminution of his earning capacity, he would have toshow that the full earnings from the...