Fleet Transport Co. v. Cooper
| Citation | 126 Ga.App. 360,190 S.E.2d 629 |
| Decision Date | 04 May 1972 |
| Docket Number | No. 1,No. 46813,46813,1 |
| Parties | FLEET TRANSPORT COMPANY et al. v. Mrs. Gerald H. COOPER |
| Court | Georgia Court of Appeals |
Perry, Walters, Langstaff, Lippitt & Campbell, Robert B. Langstaff, Albany, for appellants.
John R. Rogers, Ashburn, for appellee.
Syllabus Opinion by the Court
Plaintiff brought this suit to recover for the wrongful death of her son allegedly caused by the negligence of the defendants. A jury returned a verdict in favor of plaintiff and judgment was entered. On appeal the defendants enumerate as error the overruling of their motions for directed verdict, judgment notwithstanding the verdict and for new trial and a portion of the court's charge to the jury.
1a. The evidence, while conflicting, authorized a verdict for plaintiff.
b. Plaintiff did not aver in her complaint that her son did not leave at the time of his death a wife or child. See Code Ann. § 105-1307. The defendants did not by specific negative averment raise any issue as to the capacity of plaintiff to maintain this suit under the cited Code Section. Now the defendants, after trial, contend that the evidence is totally deficient to establish that the plaintiff's deceased son left no widow or children and therefore the verdict in plaintiff's favor must be reversed. If the defendants wished to raise an issue as to the plaintiff's capacity to sue, they were required to do so 'by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge' and their failure to do so waives this defense. C.P.A. § 9(a) (Code Ann. § 81A-109(a)); O'Neill v. Moore, 118 Ga.App. 424, 164 S.E.2d 328; Stuckey's Carriage Inn v. Phillips, 122 Ga.App. 681, 178 S.E.2d 543. Since the verdict for plaintiff was authorized and the defense of lack of capacity to sue was waived, it was not error to overrule the motions for directed verdict, judgment n.o.v. or for a new trial on these grounds.
3. The trial court charged the jury on the Last Clear Chance Doctrine to which exception was taken by the defendants. The ground of objection was as follows: 'We except to that one clause in the charge on the ground that it is an incorrect statement of the law as applicable to the facts in this case and does not succinctly state what apparently the charge is directed at, i.e., the Last Clear Chance Doctrine.' § 17A of the Appellate Practice Act as amended (Ga.L.1968, pp. 1072, 1078; Code Ann. § 70-207(a)) provides in part 'No party may complain of the giving or the failure to give an instruction to the jury, unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.' As was stated in Seagraves v. Abco Manufacturing Co., 121 Ga.App. 224, 227,...
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Clemons v. Atlanta Neurological Institute, P.C.
...the trial judge an opportunity to correct any errors in his instructions without the necessity of an appeal.' Fleet Transport Co. v. Cooper, 126 Ga.App. 360, 361, 190 S.E.2d 629." Hurst, supra 167 Ga.App. at 58, 306 S.E.2d 54. Reflection after the charge is given allows reconsideration in a......
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Broom v. Southeastern Highway Contracting Co., Inc.
...focus the precise nature of the alleged error so that it can be reasonably understood by the trial judge. Fleet Transport Co. v. Cooper, 126 Ga.App. 360, 190 S.E.2d 629 (1972). VI. Southeastern's last contention involves its assertion that the amount of the damages is In the instant case, t......
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Jim Walter Corp. v. Ward
...We do not consider the alleged error was so substantial and harmful as a matter of law to require reversal. See Fleet Transport Co. v. Cooper, 126 Ga.App. 360(2), 190 S.E.2d 629; Christiansen v. Robertson, 237 Ga. 711, 712, 229 S.E.2d 472; Durrett v. Farrar, 130 Ga.App. 298, 306, 203 S.E.2d......
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Davis v. Ben O'Callaghan Co.
...(Ga.L.1966, pp. 609, 620)); Prince & Paul v. Don Mitchell's WLAQ, Inc., 127 Ga.App. 502(1), 194 S.E.2d 269; Fleet Transport Co. v. Cooper, 126 Ga.App. 360(1)(b), 190 S.E.2d 629. ( f) Finally, Davis contends that by failing to obtain the return of a nulla bona as against Security O'Callaghan......