Gregory v. Ross

• Decision Date: 11 July 1958
• Docket Number: No. 20118,20118
• Citation: 104 S.E.2d 452,214 Ga. 306
• Parties: J. W. GREGORY v. Carolyn ROSS.
• Court: Georgia Supreme Court

Page 452

104 S.E.2d 452

214 Ga. 306

J. W. GREGORY v. Carolyn ROSS.

No. 20118.

Supreme Court of Georgia.

July 11, 1958.

Syllabus by the Court.

1. In applications for continuance on the ground of surprise resulting from an amendment to pleadings, the party claiming surprise must make oath, or his counsel state in his place, 'that such surprise is not claimed for the purpose of delay.'

2. The denial of a motion for a nonsuit cannot be reviewed by a motion for new trial, but should be made the subject of a direct exception.

3. In an action to recover damages for a physical injury, it was competent for a non-expert witness, who knew the injured person well and who saw her frequently after the injury, to testify what her physical condition was after the injury and 'what she went through' between the date of the injury and a subsequent date on which she miscarried.

4. In the circumstances of this case the court did not err, as the plaintiff in error contends, in charging the jury that it was negligence per se for the operator of the defendant's truck to run a red light at the intersection of a city street and highway.

5. The general grounds of the motion for new trial are without merit since the verdict was supported by the evidence and has the approval of the trial judge.

J. Neely Peacock, Jr., Colquitt H. Odom, Albany, for plaintiff in error.

W. H. Burt, Burt & Burt, R. W. Reynolds, Albany, for defendant in error.

CANDLER, Justice.

Mrs. Carolyn Ross sued J. W. Gregory for damages in the City Court of Albany. The petition which she filed on March 15, 1957, in substance alleges: She sustained specified personal injuries when a truck, which the defendant owned and which his agent, R. L. Littleton, was operating for him and in the prosecution of his business, ran a red light at the intersection of two named streets in the City of Albany and struck the right side of an automobile which her husband was driving and in which she was riding. Littleton's violation of enumerated city and State traffic regulations was the proximate cause of her injuries. Her petition was not demurred to, but the defendant by his answer denied all of its substantial allegations. During the trial, and after some evidence had been introduced, the plaintiff amended her original petition by denominating it as 'Count 1' and by making other allegations which she denominated as 'Count 2'. So far as need be stated, count 2 alleges: The defendant permitted one R. L. Littleton to operate his truck, on and along a named street in the City of Albany, with defective brakes. He knew or through the exercise of ordinary care could and should have known that its brakes were defective. While Littleton was so operating the defendant's truck, and because it was not equipped with brakes sufficient to stop it while in motion, he ran a red light at the intersection of the Old Radium Springs Road and U. S. Highway No. 82 in the City of Albany and injured plaintiff in the manner alleged in the original petition or in count 1 of the amended petition. The defendant, by permitting Littleton to operate his truck without proper braking facilities, violated the provisions of Code, § 68-1715(a) and (c), and such negligent act on his part was the direct and proximate cause of the injuries she sustained. When the amendment was allowed, the defendant 'plead surprise and moved for a continuance until the afternoon session in order to meet said amendment.' His motion was denied. The plaintiff then struck count 1 of her petition and the trial proceeded as to count 2 only. The jury returned a verdict in favor of the plaintiff for $3,000. The defendant moved for a new trial on the usual general grounds and later amended his motion by adding four special grounds. His amended motion was denied and he sued out a writ of error to the Court of Appeals. That court while sitting as a body for the purpose of considering the case was unable to render judgment, since Judges Nichols, Townsend, and Carlisle were of the opinion that the judgment complained of should be affirmed, while Chief Judge Felton, Presiding Judge Gardner, and Judge Quillian entertained a different view. The case therefore came to this court for decision under article 6, section 2, paragraph 8 of the Constitution of 1945 (Code, § 2-3708).

1. During the trial the plaintiff, as our statement of the case shows, amended her petition materially. Counsel for the defendant stated that he was surprised by the amendment and moved that the trial be halted until the afternoon session of the court. His motion was denied by the trial judge, and this is one of the assignments of error in the motion for new trial. In the circumstances of the case we do not think this ground of the motion requires a reversal of the judgment refusing a new trial. The Code distinctly provides that, in all applications for continuance on the ground of surprise resulting from an amendment to the pleadings, the opposite party shall make oath, or his counsel shall state in his place, 'that such surprise is not claimed for the purpose of delay.' Code, § 81-1409. Neither procedure was followed in this case, but counsel for the plaintiff in error argues that, under the facts disclosed by the record, it was necessarily to be inferred that the application to halt the trial for a few hours was not made for delay only. The Code does not leave this matter to inference; there must be an express statement to the effect that delay is not the purpose of the application; and, in the absence of such express statement, a judgment refusing to continue the case will not be reversed. Atlanta & Birmingham R. Co. v. Douglas, 119 Ga. 658(1), 46 S.E. 867; Potts v. Wilson, 158 Ga. 316(1a), 123 S.E. 294; Williamson v. Gentry, 44 Ga.App. 596(2), 162 S.E. 395; Hoffman v. Franklin Motor Car Co., 32 Ga.App. 229(2), 122 S.E. 896.

2. Another special ground of the motion for new trial alleges that the court erred in denying a motion, which was timely made, for a nonsuit. This ground cannot be considered, for the reason that a judgment denying a motion for nonsuit cannot be reviewed by a motion for new trial, but should be made the subject of a direct exception. Dixie Manufacturing Co. v. Ricks, 153 Ga. 364(4), 112 S.E. 370; Don v. Don, 163 Ga. 31(3), 135 S.E. 409; Dickson v. Citizens Bank & Trust Co., 184 Ga. 398(8), 191 S.E. 379.

3. During the direct examination of William O. Ross, the plaintiff's husband and witness, he was asked the following question: 'What...