Haley v. Kinney, 49073

• Decision Date: 18 June 1974
• Docket Number: No. 1,No. 49073,49073,1
• Citation: 132 Ga.App. 525,208 S.E.2d 312
• Parties: Junior HALEY v. John KINNNEY et al
• Court: Georgia Court of Appeals

Page 312

208 S.E.2d 312

132 Ga.App. 525

Junior HALEY v. John KINNNEY et al.

No. 49073.

Court of Appeals of Georgia, Division No. 1.

June 18, 1974.

Rehearing Denied July 17 and July 31, 1974.

William O. Carter, Hartwell, Jim Hudson, Athens, for appellant.

Erwin, Epting, Gibson & Chilivis, Gary B. Blasingame, Athens, E. Freeman Leverett, Elberton, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

This is a companion case to Bennett v. Haley, 132 Ga.App. 512, 208 S.E.2d 302. The facts are recited in that opinion. As there shown this suit was instituted by Haley a pedestrian, for damages which he claimed were proximately caused by the joint and several acts of negligence of two motorist defendants. The jury returned two verdicts. One was for the plaintiff in the amount of $37,500 against Bennett, which we affirmed in the companion appeal. The other verdict was for the co-defendant Kinney.

1. In this appeal by the plaintiff in his brief designated 'Supplemental and Amendatory Brief on Behalf of Appellant,' he states his position to be: 'Junior Haley contends that this is a direct appeal and that he is entitled, under applicable Georgia law, to obtain a reversal of said judgment insofar as it discharges defendant John Kinney from liability to Junior Haley, and said Haley further contends that he is entitled to retain the benefit of said judgment insofar as same adjudges that he recover $37,500 together with interest and costs, from defendant James R. Bennett. However, if such be impermissible under Georgia law and Haley contends that such is not impermissible under Georgia law, then a new trial would be granted as against both defendants.' As consideration of the enumeration of error have led to the conclusion the trial court did not err in any of the specifications urged by appellant we do not undertake to decide these questions presented by the amendatory and supplemental brief.

2. Enumeration of error No. 1 contends the court erred in charging the law on accident. The facts here warranted the court's charge on accident. Trammell v. Williams, 97 Ga.App. 31(2), 101 S.E.2d 887; Brewer v. Gittings, 102 Ga.App. 367, 368(6), 116 S.E.2d 500; Ware v. Alston, 112 Ga.App. 627, 631(2), 145 S.E.2d 721; Kirkland v. Moore, 128 Ga.App. 34, 195 S.E.2d 667. See also Baggett v. Jackson, 79 Ga.App. 460(1), 54 S.E.2d 146.

3. The second and third enumerations of error argue the court erred in charging the jury on the principles of comparative and equal negligence. Under the facts of the case at bar the charge was proper. Jackson v. Miles, 126 Ga.App. 320, 321, 190 S.E.2d 565.

4. Enumerations 4, 5, 6, 7, 8, 9, 10, and 11 contend the trial court erred in failing to give certain requested charges. Examination of these requests to charge shows that they were basically either argumentative in nature or the legal principles were adequately covered by the court's general charge on negligence. 'There is no longer any requirement that a court give the exact language of a requested instruction, even if it be correct and applicable. (Cit.)' American Home Assur. Co. v. Stephens, 121 Ga.App. 306, 309, 174 S.E.2d 186, 189. It Moore v. Green, 129 Ga.App. 268, 269, 199 S.E.2d 317, 318, this court quoted with approval from Gates v. Southern R. Co., 118 Ga.App. 201, 204, 162 S.E.2d 893, 895, that: "A requested charge should be given only where it embraces a correct and complete principle of law which has not been included in the general instructions given and where the request is pertinent and adjusted to the facts of the case."

5. The final enumeration of error deals with an alleged error in the denial of a motion for mistrial and the renewal thereafter based upon the manner in which the trial court handled the matter. When codefendant Kinney was placed upon the witness stand, his counsel asked 'Is your wife going into the hospital in the morning?' Upon defendant giving an affirmative answer plaintiff's counsel objected and the jury was removed from the courtroom. The subsequent colloquy disclosed the basis for the objectionable question to have been the anticipated absence from the courtroom of this defendant on the following day because of...