Hogg v. First Nat. Bank of West Point

• Decision Date: 05 December 1950
• Docket Number: No. 1,No. 33149,33149,1
• Citation: 82 Ga.App. 861,62 S.E.2d 634
• Parties: HOGG v. FIRST NAT. BANK OF WEST POINT
• Court: Georgia Court of Appeals

Page 634

62 S.E.2d 634

82 Ga.App. 861

HOGG v. FIRST NAT. BANK OF WEST POINT.

No. 33149.

Court of Appeals of Georgia, Division No. 1.

Dec. 5, 1950.

Judgment Adhered to Dec. 19, 1950.

Syllabus by the Court.

1. The charges complained of in grounds 4 through 10 as being argumentative and as an expression of opinion by the court on the facts of the case were not subject to that criticism nor error for any of the reasons assigned, and the trial court did not err in overruling these grounds of the motion for a new trial.

2 & 3. The charges complained of in grounds 11 and 12 of the amended motion were not erroneous, and these grounds were properly overruled.

4. The portion of the charge complained of in ground 13, which repeated several times the circumstances under which the jury should find for the defendant or against the plaintiff, was not subject to misinterpretation by the jury as being argumentative or an expression of opinion by the court when viewed in the light of the entire charge wherein the court expressly cautioned the jury against taking anything said or done by him as an expression of opinion.

5. It does not appear that any harm resulted to the plaintiff from the court's refusal to permit the reading of the deposition of the witness who was in the court, where the court later permitted portions of the deposition to be read and admitted these portions to the jury's consideration for all purposes. (a) The fact that the court required the plaintiff, in examining the witness to lay the foundation for cross examination by showing entrapment by the witness was not harmful to the plaintiff under the facts of this case.

6. The court did not error in permitting the defendant's witnesses to testify that several other persons had walked over the same portion of the floor where the plaintiff fell, and on the same day and while the floor was in the same condition, and that none of those persons had slipped or fallen.

Duke Davis, LaGrange, Arnold, Gambrell & Arnold, Atlanta, for plaintiff in error.

Lovejoy & Mayer, LaGrange, Morgan S. Cantey, West Point, for defendant in error.

WORRILL, Judge.

Jarrell Newton Hogg sued the First National Bank of West Point for damages allegedly suffered when he fell to the floor in the bank's office and injured his right arm. To the petition as amended the defendant filed an answer in which it denied liability and alleged that the plaintiff's injuries resulted from his own negligence. Upon the trial of the case the jury returned a verdict for the defendant and judgment was entered thereon. The plaintiff made a motion for a new trial on the general grounds which he amended by the addition of sixteen special grounds. The court overruled the motion and the exception here is to that order.

The plaintiff contends that he entered the offices of the defendant bank as an invited guest or customer for the purpose of negotiating a loan; that the main lobby of the bank had a marble floor and that a portion partitioned therefrom by a railing or half-partition about three feet high, in which portion the President of the bank had his office, which had an asphalt tile floor, that as he stepped from the main lobby through a gate or door in the said partition and onto the asphalt tile floor, his foot slipped on an excess accumulation of wax, grease, floor oil, or other slippery substance, and he was thrown violently to the floor sustaining the injuries for which he sued. It is his contention that the defendant or its employees were negligent in permitting this excess of oil, wax, grease or some other slippery substance to accumulate on the asphalt tile floor thus causing a condition that was dangerous and hazardous to persons walking thereon, and that the defendant was further negligent in failing to warn plaintiff of this dangerous condition. The defendant contends that the plaintiff fell because his shoes were equipped with hard leather heels which slipped on the asphalt tile floor, that it was not negligent in the maintenance of the floor, that it merely waxed and cleaned the floor in the customary manner or in the manner generally used on such floors. Such further reference to the facts of the case as may be necessary to a decision will be made in the opinion.

1. Ground 5 of the amended motion for new trial complains of this charge of the court: 'Now, gentlemen, if you believe from the evidence that the floor in the bank was waxed and polished and cleaned in the usual and customary manner with materials in general use for that purpose, and that the defendant exercised ordinary care and diligence in keeping the floor in safe condition, you should find for the defendant, even though the plaintiff was injured by falling on said floor.' Plaintiff contends that this charge was argumentative, an expression of opinion on the facts by the court, and that in thus picking out particular circumstances and dealing with them separately in such a manner as to belittle the plaintiff's case the court erred.

Ground 6 of the amended motion complains of the charge, 'I charge you further gentlemen, if you believe from the evidence that the floor was waxed and clean, the fact that the floor was waxed does not of itself constitute evidence of negligence. I further charge you that the mere fact that the plaintiff slipped and fell on the floor does not of itself constitute evidence of negligence.' Movant contends that this charge was erroneous in that it was an expression of opinion on the facts by the court, that it withdrew from the jury's consideration the question of whether the defendant's waxing the floor was negligent, when if such fact were considered with other facts in evidence in the case the jury would have been authorized to find that waxing the floor was negligent, that the same criticism applied to the statement concerning the plaintiff slipping and falling; that the charge singles out particular facts bearing on the issue and seeks to belittle or destroy their weight and probative value when considered alone, when such facts, if taken in connection with all of the evidence in the case would have tended to support the plaintiff's contentions.

The next special ground of the motion contends that the court erred in giving in charge, 'In order for the plaintiff in this case to recover for the injury resulting from a fall on the floor it is necessary for him to prove by a preponderance of the evidence that the bank was negligent in the maintenance of the floor,' on the ground that it restricted the allegations of negligence to the bank being negligent in the maintenance of the floor, when the plaintiff had alleged that the defendant was guilty of negligence in other respects and particulars.

Ground 8 assigns error because the court charged, 'Now if you believe, gentlemen, from the evidence at the time the plaintiff slipped and fell that the plaintiff was wearing shoes equipped with hard leather heels and that the cause of his slipping and falling was due to the hard leather heels on his shoes, and that this was the proximate cause of his slipping and falling, then the plaintiff could not recover and you should rendere a verdict in favor of the defendant,' because it was an expression of opinion on the facts, was an instruction that the wearing of leather heels was negligence per se, when as a matter of fact it was a jury question as to whether or not it could be considered negligence at all, that the charge did not take into consideration the rules of comparative negligence of force in this State and was contra to such rules, that there was nothing in the pleadings or evidence to justify such charge.

The ninth ground of the motion complains because the court charged, 'Now, gentlemen, I charge you that the defendant had a right to wax and clean its floors in the usual manner,' because it was an expression of opinion, was an instruction that the usual manner of waxing floors was a proper one when it may have been a negligent manner, and was not the proper standard by which the jury should have measured the defendant's conduct.

Ground 10 alleges error in the giving of this charge: 'Now gentlemen, I charge you that the defendant had a right to wax and clean its floors in the usual manner. No negligence can be charged to the defendant because of this and the defendant would not be liable simply because the plaintiff happened to slip on the floor, unless you find by a preponderance of the evidence that the defendant was negligent in allowing an accumulation of wax or other substance to remain upon the floor and which caused the floor to be slippery.' Plaintiff contends that this charge was erroneous because it was an expression of opinion, was argumentative, singled out a particular fact bearing upon the issues and sought to belittle or destroy its weight and probative value when considered alone when such fact, considered with other evidence in the case would support plaintiff's contentions; that it gave the jury an improper standard by which to measure the defendant's conduct.

The first special ground of the motion for new trial sets out in one assignment of error all the paragraphs of the charge quoted above, and assigns error on the collective charges on the grounds that, 'It singles out and deals separately with each of a series of particular facts bearing upon the issues to be tried, in such a way as to either belittle or totally destroy their weight and probative value when each is considered alone, when such facts, if taken in connection with other evidence in the case, would support the plaintiff's case,' that it instructed the jury four separate times that the mere fact that the plaintiff was injured by falling on the floor would not of itself indicate negligence of the defendant, that the court expressed an opinion on the facts of the case, that it was argumentative and gave the jury the impression that the court desired that they render a verdict for the defendant, that...