Chitwood v. Stoner

• Decision Date: 13 September 1939
• Docket Number: No. 27532.,27532.
• Citation: 4 S.E.2d 605
• Parties: CHITWOOD . v. STONER.
• Court: Georgia Court of Appeals

4 S.E.2d 605

CHITWOOD .

v.STONER.

No. 27532.

Court of Appeals of Georgia,

Division No. 1.

Sept. 13, 1939.

Syllabus by the Court.

The evidence supported the verdict and the court did not err for any reason assigned in overruling the motion for a new trial.

Error from Superior Court, Whitfield County; J. H. Hawkins, Judge.

Action by W. A. Stoner against Lee Chitwood for injuries sustained when struck by motor truck operated by the defendant. To review a judgment for the plaintiff, the defendant brings error.

Affirmed.

Hardin & McCamy, of Dalton, for plaintiff in error.

D. W. Mitchell and C. H. Dalton, both of Dalton, for defendant in error.

GUERRY, Judge.

Stoner filed an action against Chitwood to recover damages for personal injuries alleged to have been caused by the negligent operation by the defendant of his motor truck. On the trial of the case the plaintiff amended his petition, charging that the acts of negligence were "wilful and in utter disregard of the safety of plaintiff, " and praying "for punitive damages to deter the wrongdoer from again committing the trespass." The court overruled a demurrer to the amendment. The trial resulted in a verdict for the plaintiff. The judge granted a new trial, and on the second hearing a verdict was again returned for the plaintiff, the amount of it being $3,000. The defendant again moved for a new trial, which motion was denied. The case is now before this court by exceptions to the order allowing the amendment and to the order denying a new trial.

1. The plaintiff in error assigns error on the order allowing the amendment to the petition, which added that "the acts of negligence in the original petition were wilful and in utter disregard of the safety of plaintiff, " and prayed "for punitive damages to deter the wrongdoer from again committing the trespass, " on the ground that the amendment set up a new cause of action, rendered the petition multifarious, and was not permissible save only by the addition of a new and separate count. This assignment is without merit. Where a plaintiff predicates his charge of damages on the negligent acts of the defendant in that he failed to use ordinary care and caution, it does not change the nature of the action to engraft thereon the further allegation that said acts were also "wilful and in utter disregard of the safety of plaintiff, " subjecting the defendant to punitive damages, where the engraftment is by amendment to the original petition rather than by the addition thereto of a new and separate count. "In an action for a tort alleged to have been committed by defendant to the plaintiff's person, it is not error to allow an amendment claiming exemplary damages in which it is, in effect, alleged that the act complained of amounted to willful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences." Southern Railway Co. v. Jordan, 129 Ga. 665, 59 S. E. 802. We think the language in Pratt Engineering & Machine Co. v. Trotti, 142 Ga. 401, 403, 83 S.E. 107, 108, appropriate: "Such an amendment did not add a new and distinct cause of action; nor was it objectionable on the ground that it was not germane to the cause of action set forth in the original petition; nor was it 'improper and illegal under the theory of and the issues raised by the allegations of the original petition.'" See Edwards v. McNair & Sellers, 29 Ga.App. 237 (2), 114 S.E. 814, on the question whether an amendment to the original petition seeking punitive damages adds a new and distinct cause of action. We quote from that decision as follows: "Nor did the amendment claiming the exemplary damages introduce a new cause of action, since both inhered in and flowed from the same tort." (Italics ours). See, also, Southern Railway Co. v. Jordan, supra.

2. Error is assigned because of the alleged excessiveness of the verdict, it being contended that no permanent injuries were shown. This assignment is without merit. The verdict appears to have been based not alone on permanency of injury and time extent of disability, but also on pain and suffering from the injuries proved, the measure of damages being the enlightened consciences of fair and impar-tial jurors, it can not be said, in the absence of bias on the part of the jury, that the verdict was excessive. For no reason or plea appearing is it shown that the jury acted on bias or prejudice. In this connection see Crawford v. Crawford, 134 Ga. 114, 67 S.E. 673, 28 L.R.A., N.S., 1353, 19 Ann.Cas. 932; Pratt Engineering & Machine Co. v. Trotti, supra, headnote 5; Anderson v. Kennickell, 17 Ga.App. 574, 87 S.E. 835; Georgia Southern Railroad Co. v. Neel. 68 Ga. 609(2); Morris v. Stanford, 58 Ga.App. 726(3), 199 S.E. 773.

3. There is no merit in the assignment of error that the judge did not charge Code, § 105-603, that "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover, " as the charge taken as a whole clearly charges that principle. However, the better practice is to give distinctness to this section by direct charge on it.

4. Error is assigned on the following excerpt from the charge to the jury: "I charge you that if you find that the point where the injury occurred was under the conditions existing at the time a dangerous place on said street, and if you find that the defendant did not reduce his speed in approaching said point and did not have the same under immediate control, then I charge you that he was guilty of negligence per se, and if such negligence proximately contributed in bringing about the injury and damage to W. A. Stoner, the plaintiff is entitled to recover a verdict for the full amount of the damage sustained, " in that it was inapplicable to the pleadings and facts in the case, was confusing and misleading, and imposed on the defendant a greater burden than that imposed by statute. We can not agree with the contention for any reason assigned. It appears from the petition that the street in the City of Dalton at the point of the alleged injuries was being paved, and "that along Greenwood Drive and in the vicinity of where petitioner was injured a large number of men were engaged in working upon said street all of which was well known to the defendant, " and that "notwithstanding the fact that the defendant knew that a...