Hudson v. Cole, 38267

• Decision Date: 15 July 1960
• Docket Number: No. 38267,No. 1,38267,1
• Citation: 115 S.E.2d 825,102 Ga.App. 300
• Parties: Nancy D. HUDSON v. Phillip COLE et al
• Court: Georgia Court of Appeals

Page 825

115 S.E.2d 825

102 Ga.App. 300

Nancy D. HUDSON v. Phillip COLE et al.

No. 38267.

Court of Appeals of Georgia, Division No. 1.

July 15, 1960.

Rehearing Denied July 28, 1960.

Syllabus by the Court.

1. An excerpt from the charge of the trial court which is correct in itself is not rendered erroneous because some other essential and correct principle of law is not included therein or added thereto. Accordingly, an assignment of error so based is incorrect and will not be considered by this court. In such a situation the motion for a new trial should assign error on the failure of the court to charge the other essential and correct principle of law involved and not on the charge given.

2. It is reversible error for a trial judge to give an erroneous, misleading, and confusing instruction to the jury, even though the correct instruction on the point be later given, where the trial court did not expressly call the attention of the jury to the incorrect statement and explain to them that it was erroneous. A jury must take the whole charge as law, and it is not for them to select between conflicting parts without being instructed to do so by the judge.

3. (a) The Georgia law does not make the basis of recovery for wrongful death the mental or physical suffering of the person bringing the action. The emotional upset of the plaintiff is no part of the measure of damages. It is error to so charge. (b) The requirement of loss of financial support for dependency as a basis for recovery for the wrongful death of a minor by the mother or father was eliminated by the enactment and approval of Georgia Laws 1952, p. 54. It is reversible error for the court to charge affirmatively these requirements.

Mrs. Nancy Davis Hudson, as plaintiff, for the wrongful death of her daughter, a minor, brought an action against Jerry Cole, a minor, Phillip Cole and Mrs. Gettie Cole, as defendants. The plaintiff's child was killed by an automobile operated by the young defendant, Jerry Cole. At the time of her death, the child was struck by the automobile while she was endeavoring to cross the road, approximately three-tenths of a mile south of the corporate limits of Nichols, Georgia.

The case came on for trial and the jury rendered a verdict in favor of all the defendants. The plaintiff filed a motion for a new trial on the general grounds, and later added certain special grounds by amendment.

The trial judge overruled the motion for a new trial, as amended, and the case is now before this court assigning error thereon.

Parker & McGee, Thomas A. Parker, Waycross, for plaintiff in error.

Sapp & Holton, D. C. Sapp, Douglas, for defendants in error.

BELL, Judge.

Since there was no insistence by counsel on the general grounds of the motion or on ground 6 of the amended motion for a new trial, these, under the repeated rulings of this court, are deemed abandoned. Also, may we point out, there is no special ground designated as ground 4. We go, then, for consideration, directly to the remaining special grounds, designated as grounds 5, 7, and 8.

1. The special ground designated as ground 5 contends that the court erred in giving the following charge to the jury: 'I charge you further that the legal speed limit in this state is 50 m. p. h. from one-half hour after sunset until one-half hour before sunrise.' This instruction in and of itself is a correct enunciation of the law. Code (Ann.) § 68-1626(b), par. 2.

An excerpt from the charge of the trial court which is correct in itself is not rendered erroneous because some other essential and correct principle of law is not included therein or added thereto. In such a case, the motion for a new trial should assign error on the failure of the court to charge the other essential and correct principle of law involved and not on the charge given. For this reason ground 5 will not be considered by this court. Cowart v. Gunn, 90 Ga.App. 680, 684(6), 83 S.E.2d 832. Also see annotations under Code § 70-207, catchword 'Omission.'

2. The special ground designated ground 7 assigns error on the following charge to the jury: 'Gentlemen of the jury, if the plaintiff is entitled to recover, the plaintiff's recovery would be confined to her pecuniary interest in the life of her daughter, or the value of that life to the plaintiff. The plaintiff would be entitled to recover the full value of the life of her daughter without reduction for necessary and other personal expenses of the daughter had she lived.' It is contended that this charge was injurious to the plaintiff and confusing to the jury for the reason that it limits any recovery to her pecuniary interest in the life of the deceased and the value of that life to the plaintiff, rather than the correct measure of damages which, under Code §§ 105-1307 and 105-1308, is the full value of the life of the child. It is further contended that this charge is unsound as an abstract principle of law. While we do agree that the first sentence of this charge is clearly erroneous in that it states that the plaintiff's recovery shall be confined to 'her pecuniary interest in the life of her daughter, or the value of that life to the plaintiff,' however, it is clear that the second sentence of this charge properly stated the measure of damages under Code §§ 105-1307 and 105-1308, but since the trial judge did not expressly call the attention of the jury to the incorrect statement, and explain to them that it was erroneous, it clearly could have misled the jury and confused them. A jury must take the whole charge as law, and it is not for them to select between conflicting parts without being instructed to do so by the judge. Atlantic...