Hunt v. Williams, s. 38891

• Decision Date: 13 September 1961
• Docket Number: 38911,No. 1,Nos. 38891,s. 38891,1
• Citation: 122 S.E.2d 149,104 Ga.App. 442
• Parties: W. H. HUNT et al. v. Mrs. E. V. WILLIAMS. Mrs. E. V. WILLIAMS v. W. H. HUNT et al
• Court: Georgia Court of Appeals

Page 149

122 S.E.2d 149

104 Ga.App. 442

W. H. HUNT et al. v. Mrs. E. V. WILLIAMS.

Mrs. E. V. WILLIAMS v. W. H. HUNT et al.

Nos. 38891, 38911.

Court of Appeals of Georgia, Division No. 1.

Sept. 13, 1961.

Rehearing Denied Sept. 27, 1961.

Syllabus by the Court.

1. Whether the court erred in admitting certain testimony over objection is immaterial where later the same witness gives substantially the same testimony without objection.

2. Whether or not excluded testimony of a witness was admissible, its exclusion is not error requiring a new trial when it appears that the witness delivered testimony substantially the same as that excluded and it remained before the jury without objection.

3. An exception to an excerpt from the charge of the court to the jury, when a part of the excerpt is pertinent to the issues in the case, is not well taken, even if other parts of the excerpt are not pertinent to the issues.

4. Evidence that a plaintiff performed certain work before her injuries, that her ability to work was diminished after her injuries, that she had never worked for wages but had been offered a trial at a job paying stated wages, is not sufficient to authorize a charge on damages recoverable for loss of earning capacity.

5. (a) The charge of the court set forth in division 4 of the opinion was error for the reason that it authorized recovery for diminished capacity to labor as a separate and distinct item of damages. Diminished capacity to labor is merely an element of pain and suffering.

(b) An injured plaintiff may recover for decreased capacity to labor as an element of pain and suffering, and also for decrease in earning capacity when there is evidence from which the jury can arrive at, estimate, or reasonably infer a pecuniary loss for the decrease in earning capacity.

6. Exception that the court's charge on the contention of the parties overemphasized plaintiff's and underemphasized defendant's contentions shows no prejudice to the complaining party and no error.

7. For the reasons stated in the opinion the trial court did not err in granting the order nunc pro tunc respecting the rule nisi on the motion for new trial nor in overruling the motion to dismiss defendant' motion for new trial.

The plaintiff (defendant in error) sued the defendants, the owner and driver of a truck (plaintiffs in error), for damages, alleging among other things, that said truck, to the knowledge of the driver, had defective brakes that caused it to cut and swerve to the left when the brakes were applied; that as the driver approached a curve in the highway he applied the brakes and the truck cut across the center line of the highway and collided with the car in which the plaintiff was riding, whereupon plaintiff received serious injuries; that the defendants were negligent in many particulars, including operating the truck with knowledge of the defective brakes and applying the brakes under the circumstances. The trial resulted in a verdict and judgment of $15,000 for the plaintiff. The defendants filed a motion for new trial on the general and several special grounds, which the trial court overruled. The defendants except to the judgment of the trial court. The plaintiff filed a cross-bill of exceptions assigning errors which will be discussed in division 7 of the opinion.

McClure, Ramsay & Struble, Toccoa, Erwin, Birchmore & Epting, Athens, for plaintiff in error.

Marshall L. Allison, Lavonia, William O. Carter, Hartwell, for defendants in error.

HALL, Judge.

1. Special ground 1 of defendants' motion for new trial complains of the admission of the testimony of a witness that in his opinion '* * * what caused the wheel, the left front wheel to lock as I described it, it could be caused from grease or brake fluid on the brakes or the brakes could be too tight on that one wheel.' The defendant objected to his evidence on the ground that 'it would be a conclusion on the part of the witness.' After the admission of the above testimony the same witness testified further: '* * * As to whether there was anything on that truck that could have caused that left front wheel to slow down and locked, it could have been brake fluid or grease on the brake shoe, either one would cause a brake shoe to grab. The other reason was he could have had them too tight in adjustment. You can have one brake too tight on an automobile and when you put it on it will pull that way, that brake will pull the car that direction for some distance. * * *' There was no objection to the testimony just quoted.

Whether the court erred in admitting the testimony objected to is immaterial, since the same witness gave substantially the same testimony again and no objection was made to it. County of Butts v. Hixon, 135 Ga. 26, 27, 68 S.E. 786; Simmons v. State, 34 Ga.App. 163, 128 S.E. 690; Exchange Bank of Savannah v. Pate, 41 Ga.App. 1, 3, 151 S.E. 823; Corley v. Russell, 92 Ga.App. 417, 422, 88 S.E.2d 470. Special ground 1 therefore shows no error requiring a new trial.

2. In special ground 2 the defendants complain that their counsel asked the witness Noah Williams on cross-examination, 'You don't have a driver's license?' and the court sustained plaintiff's objection on the ground that such matter was irrelevant. Defendants contend that by this ruling the court excluded the testimony of the witness that he, Noah Williams, did not have a driver's license. The special ground itself and the record refute this contention. Immediately before asking the above question, defendants' counsel had asked the witness: 'Let me see your drivers license, maybe it will tell your birthday.' And the witness answered, 'I haven't got one.' There was no motion made to rule out this testimony and it remained in evidence.

Accordingly, even though the exclusion of Noah William's testimony that he did not have a driver's license may have been error (which we do not decide), the defendants were not harmed because such testimony was already in evidence. It 'is not every error which will warrant the grant of a new trial. The error must be a substantial one, which harms the complaining party by depriving him of something to which he was entitled in the exercise of his right to a fair and lawful trial. In the case at bar, the record discloses that the plaintiff in error was permitted to prove substantially everything contained in the testimony which was excluded. * * * therefore he could not possibly have been harmed by being deprived merely of the privilege of repetition.' Eberhardt v. Bennett, 163 Ga. 796, 137 S.E. 64; Southern Railway Co. v. Ward, 131 Ga. 21, 61 S.E. 913.

3. In special ground 3 the defendants contend that the following excerpt from the court's charge to the jury was error because it was not authorized by the pleadings and evidence: 'Every motor vehicle, other than a motorcycle or motordriven cycle, when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be so constructed that failure on any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels. * * * Every motor vehicle or combination of motor-driven vehicles shall be capable at all times and under all conditions of loading, of being stopped on a dry, smooth, level road free from loose material upon application of the service 'foot brake' within the distances specified below or shall be capable of being decelerated at a sustained rate corresponding to these distances. * * * Vehicles or combination of vehicles not having brakes on all wheels, feet to stop from twenty miles per hour, forty feet, deceleration in feet per second 10.7.' This instruction was given in connection with the following: 'I charge you, gentlemen of the jury, the following traffic laws of this State as being applicable to this case:' Whereupon the court charged portions of Code Ann. §§ 68-1626, 68-1633, 68-1634 and 68-1715 (the above excerpt is a part of Code Ann. § 68-1715(a) and (b).

There were allegations and evidence forming an issue whether the brakes on defendants' truck were adequate to control its movement. There was no issue in the case as to whether the brakes met the other statutory requirements embodied in the charge objected to. This court has recently held that 'To authorize the court to charge on the issue of whether brakes are capable of performing as required by Code Ann. § 68-1715(b), there must be evidence that the brakes have been tested and as to whether or not they meet the statutory requirements.' Atlanta Metallic Casket Co. v. Hollingsworth, 104 Ga.App. 154, 121 S.E.2d 388, 390. However, it is also held: 'An exception to divers instructions of the court to the jury, in a ground of a motion for new trial, when some of such instructions are clearly pertinent to the issues involved, is not well taken, even if some of such instructions may not be pertinent.' Mangham v. Cobb, 160 Ga. 182, 187, 127 S.E. 408, 411.

Accordingly, there was no error in overruling special ground 3 of the motion for new trial.

4. Special grounds 4 and 5 of defendants' motion for new trial involve exceptions to all or part of the following excerpt from the court's charge: 'The guide for fixing damages, if any, for pain and suffering and diminished capacity for labor, is the enlightened consciouses [sic] of impartial jurors. * * * You will look to the evidence and to the rules of law which the court has given you in charge and determine what amount, if any, you find for the plaintiff as compensation for pain and suffering and the diminished capacity to labor, past, present and future. * * * I charge you gentlemen of the jury, that if you find from the evidence and the rules of law...