Cent. Truckaway System Inc v. Harrigan
| Decision Date | 20 April 1949 |
| Docket Number | No. 32408,32411,32409,32412,32408 |
| Citation | 79 Ga.App. 117,53 S.E.2d 186 |
| Parties | CENTRAL TRUCKAWAY SYSTEM, Inc., et al. v. HARRIGAN (two cases). LYNN. v. HARRIGAN (two cases). |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. It is not error for the court, in charging the jury, merely to state correctly the contentions made by the allegations of the petition, even though some of the contentions may not be supported by the evidence. See Barbre v. Scott, 75 Ga.App. 524, 525(7), 43 S.E.2d 760.
2. Where two defendants have been joined in a tort action, based on joint and several liability, it is error for the trial court to stress and particularize in his charge the degree of negligence necessary to make a cause of action against one of the defendants without mentioning in connection therewith the other defendant, in such way as to give the jury the impression that a more favorable rule applies to the former than to the latter when in fact the same rule applies to both. In the instant case the charge assigned as error was not prejudicial to the complaining defendant.
3. Where two persons commit separate acts of negligence amounting to concurrent causes which operate directly in bringing about an injury to another, there can be a recovery against either one or both of the tort feasors, and the mere fact that the injury would not have been sustained had only one of the acts of negligence occurred does not eliminate the other act as constituting a part of the proximate cause and a charge of the trial court substantially stating this rule, as in the instant case, is without error.
4. In an action by a husband for the loss of future services of his wife, it is error for the trial court to fail to charge the jury that such future services must be reduced to present cash value. See Central of Georgia R. Co. v. Keating, 45 Ga. App. 811 et seq., 165 S.E. 873.
5. The opinions of experts on any question of science, skill, trade or like questions are admissible, and the weight and credit to be given such testimony is for the jury. See Code, § 38-1710; Mc Dowell v. State, 78 Ga.App. 116, 50 S.E.2d 633.
6. These special assignments of error are moot for the reasons set forth in the corresponding division of this decision.
7. These assignments of error are without merit for the reasons set forth in the corresponding division of this decision.
8. Under the express provision of Code, § 81-1409 dealing with continuance of cases, on application of a party pleading surprise upon the filing of an amendment, the granting or refusing of such continuance is within the discretion of the court. This discretion was not abused in the instant case where the opposite parties had approximately 3 weeks' notice of the facts set forth in the amendment.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Actions for personal injuries and for property damage sustained in automobile accident by Thomas Harrigan and his wife Mary C. Harrigan against Central Truck-away System, Inc., Casualty Reciprocal Exchange and Rodney L. Lynn. To the review the judgments, the defendants bring error.
Partly reversed, and partly affirmed.
The defendants in error, Thomas Harrigan, and his wife Mary C. Harrigan, herein referred to as plaintiffs, filed separate suits against the plaintiffs in error, Central Truckaway System, Inc., Casualty Reciprocal Exchange and Rodney L. Lynn, herein referred to as defendants, in the Superior Court of Fu'lton County.
The petitions allege substantially that on October 8, 1946, the plaintiffs had been travelling in a Chrysler automobile belonging to and driven by Mary C. Harrigan in a southerly direction on highway U. S. No. 41 and had reached a point several miles south of Cartersville known as "Spring Park" where a service station and restaurant is located on the west side of the highway; that upon reaching this point the car was driven onto the premises of the service station and restaurant in order to change drivers; that plaintiff, Thomas Harriganwalked to the rear of the car intending to re-enter on the driver's side; that the defendant Lynn was then parked in his automobile on the same premises further south than where the Harrigan car had stopped: that the defendant Lynn drove his automobile off these premises, turning to his left in a northerly direction, the reverse of that which he had been facing, onto the highway; that the trailer truck of the defendant, Central Truckaway System, Inc., and being operated by one Charles Dalton, an agent engaged in the business of said defendant, was being driven at this time and place in a northerly direction at the rate of approximately 40 miles per hour; that it was raining and the asphalt pavement of the highway was wet and slippery; that the trailer truck of the defendant, Central Truckaway System, Inc., collided with the automobile of the defendant Lynn and thereafter careened to the left across the highway and into the car of the plaintiff Mary C. Harrigan, knocking her car over a 25 foot embankment on the premises of the service station, and turning it over several times; that the car of Mary C. Harrigan was knocked into Thomas Harrigan as he was passing in the rear thereof resulting in certain injuries to him which are detailed in his petition; that his wife, Mary C. Harrigan, was sitting in the front seat of the car at the time of the collision and she was injured in certain particulars which are detailed in both petitions.
Thomas Harrigan seeks to recover for pain and suffering, loss of earnings, and loss of services of his wife, including future loss of her services. Mary C. Harrigan seeks to recover for pain and suffering, and for the damage alleged to have been done to her automobile.
The acts of negligence charged in both petitions against the defendant Lynn are as follows: (a) In turning his car across the highway; (b) In driving across the left of the center of the highway; (c) In making a U-turn in the middle of the highway; (d) In driving into the path of the north bound truck; (e) In failing to give any warning or signal of his intention to drive into the highway.
The acts of negligence charged against the defendant, Central Truckaway System, Inc. are as follows: (a) In driving the truck into the car of the defendant Lynn; (b) In failing to stop the said truck before striking the defendant Lynn; (c) By failing to reduce speed and to allow the car of the defendant to proceed; (d) In failing to give any warning of its approach; (e) In driving its truck to the left of the center of the highway; (f) In driving its truck into the car of the petitioner; (g) In failing to stop its truck before striking petitioner; (h) In failing to turn its truck to the left or to the right to avoid striking petitioner; (i) In driving its truck on the left side of the road; (j) In failing to warn petitioner of the approach of its truck; (k) In driving its truck at a speed of 40 miles per hour which rate of speed in view of the premises was not reasonable or in safekeeping with due regard for the width, grade, character, traffic and common use of the highway at the time in question.
The petitions also allege that the defendant Casualty Reciprocal Exchange is an indemnity insurance company and has issued an insurance policy indemnifying the defendant, Central Truckaway System, Inc., and it has filed the same with the Public Service Commission of Georgia as required by law.
The defendants, Central Truckaway System, Inc. and Casualty Reciprocal Exchange filed joint answers and the defendant, Rodney L. Lynn, filed separate answers to the petitions of each of the plaintiffs. All the defendants denied responsibility for the injuries and damages sustained by the plaintiffs, if any.
Construing the evidence in its light most favorable to support the verdicts, the jury trying the cases were authorized to find facts substantially as follows: that after the plaintiff, Mary C. Harrigan, had driven her car onto the premises at "Spring Park" the defendant Lynn re-entered his car which was parked some distance in front of and to the south of the Harrigan car and started to circle to the left so as to drive under the shed of the service station which was then back of where his car was parked, his object being to place hiscar out of the rain which was then falling; that in doing this the defendant Lynn drove back into the highway and was proceeding around about the middle thereof, partly on his lefthand side, in a northerly direction when he was overtaken by the truck of the defendant, Central Truckaway System, Inc., being operated at a speed approximately 45 or 50 miles per hour down hill and on a sharp curve; that upon overtaking the Lynn car, the truck side-swiped it in its effort to pass to its left which put the truck along the left side of the highway; that upon side-swiping the Lynn car the truck proceeded to collide with the Harrigan car knocking it some distance off the highway and turning it over several times; that the Harrigan car was knocked into the plaintiff, Thomas Harrigan, and turned over with the plaintiff, Mary C. Harrigan in it, injuring both in some of the ways alleged in their petitions.
The jury returned verdicts in favor of the plaintiff Thomas Harrigan in the sum of $6000 and in favor of the plaintiff Mary C. Harrigan in the sum of $10,000.
The defendants, Central Truckaway System, Inc., and Casualty Reciprocal Exchange joined in motions for new trials in both of the cases which were later amended by adding special grounds. The defendant, Rodney Lynn, filed separate motions for a new trial in each of the cases which were also amended by adding special grounds. These motions for a new trial as amended were overruled by the trial court and these judgments are assigned as error.
Gambrell, Harlan & Barwick and James C. Hill, all of Atlanta, for plaintiffs in error Central Truckaway System, Inc., and another.
Hewlett & Dennis, T. F. Bowden and Douglas Dennis, all of...
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