Dowis v. McCurdy, s. 40283
| Decision Date | 02 April 1964 |
| Docket Number | 2,40285,Nos. 40283,Nos. 1,3,s. 40283,s. 1 |
| Citation | 109 Ga.App. 488,136 S.E.2d 389 |
| Parties | Ferd DOWIS v. Julius McCURDY. Ferd DOWIS v. Donna McCURDY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Refusal of the court to postpone or delay the trial of a case which is reached and called for trial earlier than was expected when cases ahead of it were settled and not tried so that a party who had been excused by counsel and informed that he would be called when the case was reached could be present for the striking of the jury was not error, and especially is this true where there is no showing of harm or injury resulting from the refusal.
2. While a charge relative to expert testimony that 'you are not bound or concluded by the testimony of any witness, expert or otherwise' is not error requiring a new trial, the court should make it clear to the jury that this has application to opinion testimony only.
3. Where, as in this case, each specification of alleged negligence, if proved, would authorize a recovery, an instruction that 'If the plaintiff in either case proves by the evidence that the defendant committed one or more of the allegations of negligence set out in said case this would be sufficient in so far as the proof of negligence is concerned' was not error when considered in the light of the charge as a whole.
4. The evidence authorized the verdict and the trial court did not err in overruling defendant's motion for new trial.
Julius McCurdy and Donna McCurdy each brought suit in Gwinnett Superior Court for damages alleged to flow from injuries which they suffered when the automobile in which they were riding was struck in the rear by a vehicle driven by defendant's wife. The cases were tried together and resulted in verdicts for the plaintiffs. To the overruling of his amended motion for new trial in each case defendant excepts. In his special grounds defendant complains that the court erred in refusing to postpone the trial for more than fifteen minutes when his counsel requested it in order to afford him time to get to the courthouse before starting the trial, and to certain portions of the charge.
Powell, Goldstein, Frazer & Murphy, W. R. Wilson, Jr., Frank Love, Jr., Atlanta, for plaintiff in error.
Merritt & Pruitt, Glyndon C. Pruitt, Buford, for defendant in error.
1. The grant or refusal of a continuance or postponement of a case is ordinarily within the discretion of the trial court, and the authority of this court is limited to a decision of whether that discretion was abused. In such event the plaintiff in error must allege and show not only that an abuse of discretion occurred but that it resulted in injury to him, since error, to be reversible, must be harmful. An assignment of error which fails to allege that the failure to grant a continuance was injurious is insufficient for consideration. Aiken v. Richardson, 85 Ga.App. 180(3), 68 S.E.2d 228; Jones v. State, 214 Ga. 828, 108 S.E.2d 327. It appears from the first special ground of the motion for new trial that defendants' counsel had instructed the defendants that he would call them when their presence in court was needed; that due to the settlement of two cases on the calendar immediately preceding theirs this case was called unexpectedly for trial; that counsel requested time to notify the defendants but the court refused to wait more than fifteen minutes, and that when the defendants arrived the jury had been selected for the trial of the case. It is contended that this action on the part of the court deprived the defendants of their right to consult with counsel in the striking and selection of the jury, but there is no averment that had they been present any changes in the jury as selected would have been made.
It does not appear that counsel's action in excusing his clients from their presence in court until called was done by direction of or with the approval of the court. If that had been the circumstances we have no doubt that the court might have felt that indulgence of further delay would have been appropriate. But counsel must know that the operation of the court in a regular and expeditious manner cannot be interfered with by his independent, unilateral decision as to whether a client should remain in court and await the call of his case. When he does that he, and consequently his client, assume the risk of the unexpected and early reaching or call of the case by reason of a settlement, dismissal or rapid disposition of cases ahead of it on the calendar, etc. Diligence, both of counsel and of parties litigant, is necessary if courts are to function in an orderly and proper manner. Vigilantibus et non dormientibus jura subveniunt.
2. The excerpt from the court's instruction to the jury excepted to in special ground 5 concluded a charge on expert testimony with the words, '[Y]ou are not bound or concluded by the testimony of any witness, expert or otherwise.' This charge was taken verbatim from that approved in Georgia Power Co. v. Chapman, 46 Ga.App. 582, 584, 168 S.E. 131, 132 and Parks v. Fuller, 100 Ga.App. 463, 475, 111 S.E.2d 755. Judge Jenkins, in the former case, construed the language as an instruction that the jury were not bound to accept the testimony of any particular witness but not as amounting to an instruction that the testimony of all the witnesses might be disregarded. We accede hesitantly to this interpretation in the face of precedent, but feel the instruction would be on much sounder footing if the charge were reworded so as to make it applicable to opinion testimony only. See Western & A. Rr. Co. v. Beason, 112 Ga. 553, 37 S.E. 863; Holton v. Mercer, 195 Ga. 47, 23 S.E.2d 166; Myers v. Phillips, 197 Ga. 536, 29 S.E.2d 700.
3. A dissent having developed after the filing of the motion to rehear in this case as originally written, special ground 6 of the amended motion for new trial and the law relating thereto have been re-evaluated by all three divisions of this court. In this special ground the defendants except to the italicized portion of the following excerpt from the court's charge:
An instruction that proof of any of the allegations of negligence 'would be sufficient in so far as the proof of negligence is concerned' is not so misleading or confusing to the jury in this case as to justify the granting of a new trial. Such instruction, without more, is perhaps not as explicit as it could be, and it might have been better understood by the jury had the trial court added the words in the way and manner therein alleged so that such excerpt of the charge would read that proof of any of the allegations of negligence in the way and manner therein alleged would be sufficient in so far as the proof of negligence is concerned. Such charge then would clearly have been good; not misleading nor subject to the criticism lodged against it to the effect that it erroneously eliminated the necessity for the jury to determine, not only that the alleged act or acts of negligence were committed, but also that they or it were negligently committed.
We do not agree, however, that the court erred or that the jury was confused or misled by the court's failure to use such suggested additional words. If the jury found by a preponderance of the evidence that the defendants committed any one or more of the alleged acts of negligence (whether such specifications of negligence be ordinary negligence or negligence per se) in the way and manner alleged in the plaintiff's petition that necessarily and indubitably meant that the act or acts were negligently committed for the reason that in the specifications of negligence charged against the defendants the way and manner in which the defendants are charged with having been negligent is particularized and spelled out. The specifications of negligence alleged in the plaintiff's petition are as follows:
'(a) Because the said Mrs. Ferd Dowis failed to keep a sharp and vigilant lookout ahead;
'(b) Because the said Mrs. Ferd Dowis did not keep and have her husband's said Chevrolet automobile under her direct and immediate control;
'(c) Because the said Mrs. Ferd Dowis failed to have and keep the speed of said automobile under the proper control, and have the same under control necessary to avoid colliding with your petitioner, in violation of the laws of Georgia as embodied in Georgia Annotated Code Section 68-1626, subsection (a) thereof, which was negligence per se;
'(d) Because the said Mrs. Ferd Dowis failed to drive the said Chevrolet automobile at a speed and in a manner that was reasonable and prudent under the existing and apparent conditions, and taking into account the provisions of the laws of the State of Georgia, as embodied in Georgia Annotated Code Section 68-1626, subsection (a) thereof, which was negligence per se;
'(e) Because the said Mrs. Ferd Dowis did follow the said Chevrolet automobile which your petitioner was driving more closely than was prudent and reasonable, having due regard for the speed of such vehicles and the traffic upon and conditions of said highway, in violation of the laws of the State of Georgia, as embodied in Georgia Code Annotated, Section 68-1641, subsection (a) thereof, which is negligence per se.'
Proof that the defendants had committed any one or more of the above quoted specifications of negligence, in the way...
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