Huell v. Southeastern Stages Inc
| Decision Date | 03 December 1948 |
| Docket Number | No. 32177.,32177. |
| Citation | 50 S.E.2d 745 |
| Parties | HUELL et al. v. SOUTHEASTERN STAGES, Inc. |
| Court | Georgia Court of Appeals |
Rehearing Denied Dec. 15, 1948.
Syllabus by the Court.
1. The evidence, though conflicting,
sustains the verdict as to the general grounds.
2. The operator of a bus being used as a common carrier of passengers, is the agent and alter ego of the common carrier bus company, and as such is subject to cross-examination by the opposite party under the Code, Supp. Section 38 1801, and to refuse the opposite party such right is error. But under the facts of this case, is not reversible error for the reasons given in this division of this opinion.
3. It is well established that a request to charge a correct principle of law will not cause a reversal where the general charge substantially covers the request. Particularly is that so where, as here, the general charge, taken as a whole, on the question involved, is more favorable to the party than would have been the request, should it have been given as requested.
4. Where the court, as here, without a written request, fully charges the contentions of the parties as applied to the allegations of the petition and the evidence, the case will not be reversed because the plaintiffs contend that certain language of the attorney for the plaintiffs would have been more elaborate and more appropriate.
5. The assignments of error to the effect that the court did not sufficiently withdraw an erroneous charge given at the instance of the plaintiffs by a written request where, as here, the court did, at the instance of a later oral request, withdraw to the court's satisfaction and to our satisfaction, the alleged erroneous charge. Particularly is this true where the attorney for the parties by his silence and without any further request upon the court, set by evidently satisfied that the court had withdrawn the erroneous charge at the request of the attorney for the plaintiffs and made no further request to the court concerning the matter until after an adverse verdict was returned.
6. The assignment of error in this division concerning an excerpt from the charge of the court, does not require a reversal for the reasons set out in the opinion.
7. Where, as here, the insurance carrier of a bus company transporting passengers as a common carrier, is not a party, the court did not err in refusing, over objections, to allow the plaintiffs to inquire of the bus driver whether his knowledge that his employer carried insurance influences his operation of the bus he was driving in a negligent manner for the reason that the bus driver knew that any verdict rendered against the bus company would be paid by the insurance carrier. Neither was it error for the court to instruct the jury that the fact that the attorney for the plaintiffs had stated in the presence of the jury, in effect, that the bus company did have insurance and that the plaintiffs had given the defendant, the bus company, notice to produce such insurance policy, should not enter into the consideration of the jury of the facts, in determining their verdict, where, as here, no contention was made and the record does not show that any juror was interested in the affairs or in the assets of the insurance company.
8. Where, as here, the petition alleges that the negligence of the defendant was the proximate cause of the death of the deceased, but nowhere alleges that the deceased was negligent but in a lesser degree than the defendant, and where, as here, the court fully charges the law that if both the plaintiffs and the defendant were negligent, but that the deceased was negligent in a lesser degree than the defendant, the plaintiffs would be entitled to recover, but the damages should be apportioned comparatively as to the negligence of the deceased and the defendant, affords no ground for reversal. This is true even though there is no affirmative defense on the part of the defendant admitting negligence on its part, and invoking generally what is sometimes called the principle of contributory negligence on the part of the plaintiffs.
9. Where, as here, the petition for recovery is based on the allegations of negligence on the part of the defendant and where the defendant in its defensive plea enters a general denial, without any sort of affirmative defensive plea, it is not error for the court to charge in effect that the burden of proof was on the plaintiffs to prove the allegations of the petition; and where, as here, the evidence authorized the jury to find that both were negligent, it was not error for the court to charge the principle of apportionment of damages, notwithstanding that the defensive pleadings failed to allege the principle of what is generally known in this State as contributory negligence.
10. The assignment of error in this special ground shows no cause for a reversal for the reasons stated in the corresponding division of this opinion.
Error from Superior Court, Wilkes County; C. J. Perryman, Judge.
Death action by Reuben Huell, and others, against Southeastern Stages, Inc. Judgment for defendant and plaintiffs bring error.
Affirmed.
Randall Evans, Jr., of Thomson, for plaintiffs in error.
Milner & Stephens, of Athens, for defendant in error.
1. The plaintiffs sued the defendant, the Southeastern Stages, Inc., for the value of the life of their father. The petition alleged, and the evidence insofar as the testimony of the plaintiffs are concerned, show that the defendant negligently killed the father of the plaintiffs. The evidence for the defendant was in conflict with that of the plaintiffs in some respects. The jury returned a verdict for the defendant. The evidence amply sustains this verdict insofar as the general grounds are concerned. The plaintiffs filed an amendment to the original motion. This amendment contains thirteen special grounds. We will discuss them in the order argued and not numerically as they appear in the record.
2. The defendant operated a bus for the purpose of transporting passengers for hire. On the date of the homicide Troy Hardin was operating the bus as a common carrier of passengers. After the jury had been stricken and before any evidence had been presented, the attorney for the plaintiffs stated that he desired to cross-examine the bus driver. The bus driver was called to the witness stand and the court held that he was not an agent for the defendant within the provisions of the Code Supp., section 38-1801, which reads as follows: " * * * Provided, that in the trial of all civil cases, either plaintiff or defendant shall be permitted to make the opposite party, or any one for whose immediate benefit such suit is prosecuted or defended, or any agent of said party or agent of any person for whose immediate benefit such suit is prosecuted or defended, or officer or agent of a corporation when a corporation is such party, or for whose benefit such suit is prosecuted or defended, a witness, with the privilege of subjecting such witness to a thorough and sifting examination, and with the further privilege of impeachment, as if the witness had testified in his own behalf and were being cross-examined." In our opinion the driver of the bus was clearly an agent of the common carrier bus company under that section of our Code, and the court erred in not permitting the plaintiffs to subject the bus driver to the cross-examination of the attorney for the plaintiffs. On the occasion in question the bus driver was the alter ego of the common carrier defendant. Davis v. Jones, 34 Ga. App. 7(1), 129 S.E. 892; Moore v. DeKalb Supply Co., 34 Ga.App. 375, 129 S.E. 899; Atlanta Laundries, Inc. v. Goldberg, 71 Ga.App. 130, 30 S.E.2d 349. But this error on the part of the court does not require a reversal under the facts of this case. This is true for the reason that before the evidence was closed the defendant put on the stand as its witness, the bus driver and before he left the stand he was submitted to the attorney for the plaintiffs for cross-examination. He was subjected to an unhampered, thorough and sifting cross-examination by able counsel for the plaintiffs. This cured the error and made it harmless. Our attention is called to, and plaintiffs rely for a reversal on the cases of Rainey, et al. v. Moon et al., 187 Ga. 712, 717, 2 S.E.2d 405; and Davis v. Wright, 194 Ga. 1(2), 21 S.E.2d 88. These cases, under their facts, are clearly distinguishable from the issue under consideration in the instant case. When the court refused to submit the bus driver to a cross-examination by the opposite party, the plaintiffs filed exceptions pendente lite. Since we have discussed the question under this special ground, we might add that the exceptions pendente lite are controlled by what we have already said on the question.
3. Error is assigned on the refusal to give a timely written request as follows: "As applied to this case, if you find that the defendant's bus was being operated at a speed of more than 55 miles per hour, then that is negligence per se, or negligence of itself, and if that negligence was a proximate cause of the death of Luther Hucll, the plaintiffs would be entitled to recover on proof of this ground of negligence alone." This ground is based on the allegation of the petition that the bus was being operated at a speed greater than 55 miles per hour, the maximum speed of a bus of the type in question. There was evidence on behalf of the plaintiffs to support this specification of negligence. This principle of law was applicable to the allegations of fact and the proof submitted to sustain it. After having read the charge as a whole carefully, we are convinced that this assignment of error requires no reversal. It is true that the court did not charge in the exact language of the request but he did charge substantially and clearly, the same principle of law, and after having read the charge in its entirety, it appears that the charge of ...
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