Burdette v. O'Neal, 38841
| Decision Date | 18 May 1961 |
| Docket Number | No. 3,No. 38841,38841,3 |
| Citation | 103 Ga.App. 734,120 S.E.2d 334 |
| Parties | L. T. BURDETTE v. Kathryn G. O'NEAL |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The trial court did not err in overruling the defendant's demurrers to the plaintiff's petition nor in thereafter overruling either the motion for new trial or the motion for judgment non obstante veredicto.
Kathryn G. O'Neal sued Lamar T. Burdette to recover for injuries sustained when at automobile owned by the defendant, and being driven by him, left a dirt road, jumped a ditch and struck two trees before coming to a stop. The plaintiff was a guest-passenger in such automobile at the time of the collision, and there were two other guest-passengers in the car. The defendant's general and special demurrers to the plaintiff's petition were overruled and on the trial of the case the jury returned a verdict for the plaintiff. Thereafter the defendant's motion for new trial and motion for a judgment non obstante veredicto were overruled, and he now assigns error on all the above judgments adverse to him.
Kennedy & Sognier, John G. Kennedy, Jr., Savannah, for plaintiff in error.
Lewis, Wylly & Javetz, Allyn M. Wallace, John C. Wylly, Savannah, for defendant in error.
1. The defendant has conceded that his general demurrer and all but three of his special demurrers were properly sustained, therefore such demurrers, conceded to have been properly sustained, are treated as abandoned.
2. The defendant's seventh special demurrer attacks and allegation of the plaintiff's petition wherein she alleged that since the collision, in which she received a fractured leg as well as other injuries, she has not been able to manipulate such leg in a normal manner and that the limitation of motion seems permanent, that she walks with a slight limp and the permanency of such injury is yet undetermined.
The complaint is that the allegation that the 'limitation of motion seems permanent' is conjectural. When the allegation is considered together with the remainder of the paragraph, especially that part that alleges the permanency of the injury has not yet been determined, the demurrer was properly overruled.
3. Special demurrer number 9 contends that the length of time the plaintiff was on crutches should be alleged with more certainty than it is alleged in paragraph 13 of the petition. The petition alleged that due to her injuries she was unable to work as a clerk in a furniture store for twenty-one weeks and for a long time was on crutches. The allegations of the paragraph deal with the plaintiff's lost earnings, and while the length of time the plaintiff was on crutches was not alleged, such time element is not material to the allegations of such paragraph, or the petition as a whole, and it was not harmful to the defendant for the court not to require the plaintiff to meet such special demurrer.
4. The remaining special demurrer, complains of the lack of allegations in paragraph 14 of the petition as to the manner and occasions when the plaintiff warned the defendant of his reckless manner of driving the automobile in which the plaintiff was a guest-passenger. When all the allegations of the petition are construed together the time and manner of the warnings given the defendant are alleged and such demurrer was properly overruled.
5. Special ground numbered 4 of the amended motion for new trial assigns error on the court's charge because: 'The court erred in devoting fifty percent of its charge to reading the allegations of the plaintiff's petition.'
No complaint is made in this ground for motion for new trial that any of the charge given by the court with respect to the plaintiff's contentions was error or that the court did not correctly charge as to the defendant's contentions in respect to the plaintiff's allegations. Under the decision of the Supreme Court in Macon, Dublin & S. R. Co. v. Joyner, 129 Ga. 683, 59 S.E. 902, the charge given was not error. The plaintiff's petition, as shown by the record, consisted of six and one-half pages while the defendant's answer was only one-half page long. No error is shown by this special ground of the amended motion for new trial.
6. Special ground 5 complains that that trial court erred in failing to charge the jury, in the language requested, as to gross negligence, and the duty of the defendant to the plaintiff. The request to charge, while correct, was no more adjusted to the pleadings and evidence than was the charge on this subject given by the court, and no harmful error is shown by this ground of the amended motion for new trial. See Southern Ry. Co. v. Jones, 98 Ga.App. 313, 106 S.E.2d 298, and citations.
7. Special ground 6 complains that the trial court erred in failing to charge the jury to disregard any mention of insurance. The testimony dealing with insurance was not inadmissible and evidence of insurance was adduced by the defendant, and while the jury should not consider whether the defendant was or was not covered by insurance in reaching its verdict a charge to the jury that it should disregard any mention of insurance would have been error since the jury must consider all the evidence legally before it. The evidence as to insurance was legally before the jury and any instruction to disregard it would have been error. See Petway v. McLeod, 47 Ga.App. 647(3), 171 S.E. 225, as to the admissibility of the evidence. The evidence as to insurance was adduced from the examination of witnesses for both parties by counsel for both parties and the answers with reference to insurance were responsive to the questions asked.
8. Special ground 7 complains that the trial court erred in failing to charge the defendant's request with respect to 'emergency.' The requested charge did not limit the application to an emergency not created by the defendant (See Cone v. Davis, 66 Ga.App. 229, 17 S.E.2d 849), and...
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Presley v. Griffith
...its admissibility. Shockey v. Baker, 212 Ga. 106, 90 S.E.2d 654; Gurley v. Hardwick, 98 Ga.App. 334, 106 S.E.2d 53; Burdette v. O'Neal, 103 Ga.App. 734, 120 S.E.2d 334. In the Gurley case, supra, this court in following the decision of the Supreme Court in Shockey v. Baker, supra, held that......