Cedrone v. Beck

• Decision Date: 07 November 1946
• Docket Number: No. 31393.,31393.
• Citation: 40 S.E.2d. 388
• Parties: CEDRONE. v. BECK.
• Court: Georgia Court of Appeals

40 S.E.2d. 388

CEDRONE.

v.BECK.

No. 31393.

Court of Appeals of Georgia, Division No. 2.

Nov. 7, 1946.

Syllabus by the Court

1. Though the better practice in charging on the preponderance of the evidence is to charge all of the provisions of the Code, § 38-107, it was not error for the court to omit to instruct the jury that they might consider the intelligence of the witnesses, where the defendant introduced no witnesses, and there was no testimony tending to discredit the intelligence or opportunity for observation of any witness, and where the jury returned a verdict for the defendant.

2. The charge on proximate cause was not error for any of the reasons assigned.

3. The error in the charge on gross negligence was harmless under the facts of this case.

4. The charge on contributory or comparative negligence was authorized under the pleadings and the evidence.

5. It was not error for the court to fail to charge the provisions of the Code, § 68-301, in the absence of a timely written request therefor, under the pleadings and the evidence in this case.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Suit by Dan Cedrone against t. N. Beck for the death of plaintiff's wife as the alleged result of defendant's gross negligence in driving an automobile in which decedent was riding as a guest. Verdict for defendant, and to review a judgment overruling plaintiff's motion for a new trial, plaintiff brings error.

Affirmed.

Smith, Kilpatrick, Cody, Rogers & McClatchey, of Atlanta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphey, and James K. Rankin, all of Atlanta, for defendant in error.

PARKER, Judge.

This was a suit by Dan Cedrone against t. N. Beck for damages for the death of the plaintiff's wife, Mrs. Laura Adams Cedrone, in an automobile accident on the 25th day of November, 1944. It was alleged that the plaintiff's wife was a guest in the automobile of the defendant and that the defendant was grossly negligent in the driving of the car at the time of the accident, and that such negligence was the cause of the accident and of the death of the plaintiff's wife. The trial resulted in a verdict for the defendant. The plaintiff filed a motion for a new trial on the general grounds, and amended it by adding five special grounds, and the overruling of the motion as amended is assigned as error in this court.

1. Ground four of the amended motion complains of the charge of the court on the preponderance of the evidence. The court charged in substance the language of the Code, § 38-107, which states how the jury may determine where the preponderance of the evidence lies, but in so doing omitted to instruct the jury that they might consider the intelligence of the witnesses. This, it is claimed, was error. The plaintiff cites Shankle v. Crowder, 174 Ga. 399(8), 163 S.E. 180; Fountain v. Mc-Callum, 194 Ga. 269(12), 21 S.E.2d 610, and Hinson v. Hooks, 27 Ga.App. 430, 108 S.E. 822, as cases sustaining this contention. In the Shankle case it was held that the charge as to the preponderance of the evidence was erroneous because it omitted all reference to the credibility of the witnesses. We construe that ruling as applicable under the facts of that case but not as a general rule that should always be applied in every case. The issue there was the validity of a paper offered for probate as a will, and the caveat thereto was based in part upon the ground of lack of testamentary capacity and undue influence upon the testator. It appears from an inspection of the record in that case that 16 witnesses, 10 on one side and 6 on the other, testified, and that their evidence was in sharp conflict, and that much of it was in the nature of expert testimony dealing with the testamentary capacity of the maker of the will. The decision in that case was not by a full bench, Chief Justice Russell dissenting. That decision was followed by this court in Gossett & Sons v. Wilder, 46 Ga.App. 651, 168 S.E. 903, the omission in the charge complained of therein not appearing in the decision. The Fountain case holds that it was error for the court to fail to instruct the jury that they might consider the intelligence of the witnesses in charging on the preponderance of the evidence, but qualified the ruling with this explanation (on page 276 of 194 Ga, on page 615 of 21 S.E.2d): "We are not to be understood as holding that when the judge undertakes to give the contents of this section in charge, in every case he must do so in hxc verba, or that in every instance the entire section should be charged. In the instant case the evidence was in sharp conflict. One of the witnesses, the plaintiff, had at one time been adjudged insane. In addition to that, other witnesses testified as to declarations made by her after she had left the lunatic asylum but while still laboring under the judgment which sent her there, as pointed out in the previous division of this opinion. In this kind of a case we think it unfortunate that the judge omitted any reference to the intelligence of the witnesses, * * *."

The more accurate rule as to the duty of the court in charging the statute as to how the jury may determine where the preponderance of the evidence lies, Code, § 38-107, seems to have been stated in Farmers' State Bank v. Kelley, 166 Ga. 683, 144 S.E. 258, a full bench decision which is older than the case of Shankle v. Crowder, supra. Theruling therein was to the effect that an omission to charge the jury that they might take into consideration that the greater number of witnesses testified in favor of one party rather than the other, though the preponderance is not necessarily with the greater number, might be harmful error or might be harmless, depending upon the facts of the case. It appeared there that the losing party had introduced only three witnesses and the prevailing party had introduced nine witnesses, and the omission to charge with respect to the greater number of witnesses was treated as harmless. That case cites Hinson v. Hooks, 27 Ga.App. 430, 108 S.E. 822, which stated the rule as follows: "It is well settled that, when a judge undertakes to charge the law upon any subject, he must charge all of it upon that subject that is material and applicable to the case." (Italics ours.) The question presented by this assignment of error was ably discussed by Judge Gardner in Georgia Power Company v. Burger, 63 Ga.App. 784, 11 S.E.2d 834. He concluded that the better practice was to charge the section of the Code in its entirety, but that the omission to charge some of the provisions of the statute may or may not be error depending on the issues of the particular case under consideration. In Travelers Indemnity Co. v. Paramount Publix Corp, 52 Ga.App. 239, 182 S.E. 923, the omission of a charge on the intelligence of a witness was held not error, it not appearing that such failure was harmful; and in Southern Ry. Co. v. Wilcox, 59 Ga.App. 785, 788, 2 S.E.2d 225, 228, a complaint that the court omitted "some of the provisions of said Code section"...