Hardwick v. Georgia Power Co., 37688

• Decision Date: 30 June 1959
• Docket Number: 2,No. 37688,Nos. 1,37688,s. 1
• Citation: 100 Ga.App. 38,110 S.E.2d 24
• Parties: W.L. HARDWICK v. GEORGIA POWER COMPANY et al
• Court: Georgia Court of Appeals

Page 24

110 S.E.2d 24

100 Ga.App. 38

W.L. HARDWICK v. GEORGIA POWER COMPANY et al.

No. 37688.

Court of Appeals of Georgia, Division Nos. 1, 2.

June 30, 1959.

Rehearing denied July 17, 1959.

Syllabus by the Court

1. The grant of a new trial to some of several defendants does not have the effect of ordering a new trial as to other defendants who are not parties to the motion for new trial.

2. Where the evidence in an action for damages to personal property is in conflict as to whether a defendant, for whose conduct his codefendant is, under the doctrine of respondeat superior, responsible was negligent, and as to whether his negligence was a proximate cause of the damage to the plaintiff's property, a verdict for neither the plaintiff nor the defendants is demanded.

3. Exceptions to preliminary rulings of the trial court can not be taken by motion for new trial.

4. Exceptions can not be taken to a charge that other and additional instructions are not given the jury. The exception should not be to the charge, but to the failure to charge.

5. It is not a valid objection to a charge that it fails to instruct the jury as to an issue not made by both the pleadings and proof.

6. A general assignment of error on a designated portion of the judge's charge will be considered for the purpose of ascertaining whether or not the particular language thus complained of states a correct abstract principle of law.

William L. Hardwick sued George W. Miller, Silas G. Gurley, and the Georgia Power Company for damages allegedly done his automobile. The petition alleged that the Power Company's truck, driven by Gurley, collided with George W. Miller's automobile at the intersection of Washington and Richardson Streets in the City of Atlanta; the collision was caused by the concurrent negligent acts of the defendants, and that as a result of the Power Company's truck and George W. Miller's automobile colliding the Miller automobile was propelled against the plaintiff's automobile which was parked on Washington Street, a safe distance from the intersection.

The jury returned a verdict against the defendants. Gurley and the Power Company filed a motion for new trial. Miller did not move for a new trial. The motion of Gurley and the Power Company was denied. Those parties defendant alone excepted and this court reversed the judgment of the trial court denying them a new trial. Gurley v. Hardwick, 98 Ga.App. 334, 106 S.E.2d 53.

The case was tried a second time, with only the issue of the plaintiff's right to recover and the amount he was entitled to recover of the defendants Gurley and the Power Company being submitted to the jury.

The jury returned a verdict for those defendants. The plaintiff, Hardwick, filed a motion for new trial on the general grounds and later added four special grounds by way of amendment. The motion for new trial was denied and he excepted.

James L. Mayson, Atlanta, for plaintiff in error.

Robert L. Pennington, Wendell J. Helton, Troutman, Sams, Schroder & Lockerman, Harold C. McKenzie, Jr., Atlanta, for defendant in error.

QUILLIAN, Judge.

1. The bill of exceptions contains an assignment of error that the court erroneously ruled that Miller, a co-defendant with Gurley and the Power Company and who did not move for a new trial or appeal to this court, was by operation of law, granted a new trial when his co-defendants' motion, to which he was not a party, was granted. Miller was not a joint defendant with Gurley and the Power Company in the sense that the action against the three was joint, and not joint and several.

The pronouncement made as early as 1854 in the case of Walker v. Dougherty, 14 Ga. 653 and often repeated by both of our appellate courts, even as late as Blevins Aircraft Corp. v. Gardner, 68 Ga.App. 784(1), 24 S.E.2d 144, is: The effect of the grant of a new trial by this court is to require the case to be heard de novo unless specific direction be given in regard thereto.

This ruling simply means that the case stands for trial as to all matters pertaining to preliminary rulings, pleadings, including amendments, the admission of evidence and procedure as though it had never been tried, but does not mean that upon the grant of a new trial to some of several defendants who move for the same to order a trial de novo as to other defendants against whom a verdict was previously returned and who neither moved for a new trial or were made parties to a motion for new trial.

The procedural process by which some of joint defendants against whom a verdict is rendered and who do not move for a new trial may be made parties to a motion for a new trial filed by their co-defendants so that all defendants may be granted a new trial, if any are entitled to be granted a new trial, is an interesting subject. However, we are not privileged to discuss the procedure here, because the alleged liability of the defendants in this case is joint and several.

The decision of this case does not involve a consideration of appeals entered as provided by these Code sections nor according to Chapter 1, Title 6 of the Code. Code, § 6-110 provides that one of several defendants may enter an appeal without joining his co-defendants. In Code, § 6-111 is embodied the rule that all of the original parties to the case are bound by the judgment entered upon final appeal.

These Code sections apply to appeals entered from the judgment of a justice of the peace or ordinary and have no connection with motions for new trial or appeals to appellate courts taken on the grant or refusal of a new trial, or to the retrial of a case when a new trial is granted to one of several defendants. Hence, consideration of the sections is not involved in the decision of this case.

2. The evidence was in sharp conflict as to whether the defendant, Gurley, for whose conduct the defendant Georgia Power Company, was responsible under the doctrine of respondeat superior, was negligent and as to whether his negligence was the proximate cause of the damage to the plaintiff's automobile. The general ground that the verdict is contrary to the evidence under the provisions of Code, § 70-202, as construed by our courts, means that the verdict is without evidence to support it (Southern Ry. Co. v. Adams, 14 Ga.App. 366(2), 80 S.E. 912), could be disposed of without discussion, except for a particular contention of the plaintiff. He insists that the defendant, Gurley, admitted that he violated the provisions of Code (Ann.) § 68-1626(a)(c), in that he did not slacken the speed of the truck he was operating in approaching the intersection at which time the truck driven by him collided with the Miller's automobile, which collision resulted in damage to the plaintiff's automobile. Code (Ann.) § 68-1626(a) and (c) provide: "(a) No person shall drive a vehicle on a street or highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care. (c) The driver of every vehicle shall, consistent with the requirements of subdivision (a), drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions."

In response to questions on cross-examination Mr. Gurley testified:

"Q. Mr. Gurley, what were the weather conditions on the night of the accident? A. It was rainy.

"Q. And what was the condition of the streets? A. The street was wet.

"Q. Were they also slippery? A. Yes, sir.

"Q. What was your speed, Mr. Gurley? A. Approximately twenty-five miles an hour.

"Q. Do you know what the speed limit in that vicinity was? A. I'm not sure, but I'd say it was around twenty-five miles an hour.

"Q. And did you know you were approaching an intersection? A. I know I'd been passing streets down the main thoroughfare. I'd been passing streets all down through there, and I didn't know--

"Q. You knew you were going to pass more streets? A. That's right * * *--

"Q. Did you make any attempt to slow down in approaching that intersection? A. Well, I was traveling twenty-five miles an hour which I figured was the speed limit. I thought I was on the main thoroughfare.

"Q. Did you slow down your speed on account of approaching an intersection? A. When I approach an intersection at any time, I reduce my speed if there's any doubt in my mind, but at this particular time there wasn't a car in that intersection as I approached the intersection.

"Q. But in just approaching the intersection, you were driving along at twenty-five miles an hour? A. Right.

"Q. And you maintained that speed until--A. Until my partner--

"Q. Until your partner hollered and told you he wasn't going to stop? A. Absolutely.

"Q. Had you seen him up until that time? A. No, sir.

"Q. Had you seen the lights? A. Absolutely.

"Q. You knew there was a car coming out of the side street or knew there was a car in the side street; you saw the lights on it? A. That's right.

"Q. You recognized it as being the lights of an automobile, did you not? A. That's right, as he went in the intersection, we did.

"Q. You didn't slow down at all for that reason? A. It would have defeated the purpose. I couldn't have stopped any sooner if there had been a train. I was already in the intersection.

"Q. You did not reduce your speed on account of rain, slippery streets, and bad visibility? A. Under the conditions we were driving, it wasn't necessary to reduce the speed.

"Q. Was it raining, the streets slippery? A. Rai...