Johnson v. Roberson
| Decision Date | 14 July 1953 |
| Docket Number | No. 1,No. 34515,34515,1 |
| Citation | 88 Ga.App. 548,77 S.E.2d 232 |
| Parties | JOHNSON v. ROBERSON |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where the instructions to the jury embodied a definition of the term 'preponderance of the evidence,' and where the court generally charged the jury that the plaintiff must prove her case by a preponderance of the evidence, it was not error requiring the grant of a new trial for the court to fail to instruct the jury, without request therefor, that the plaintiff must prove one or more of the acts of negligence alleged in her petition before she could recover.
2. The charge submitting to the jury the question as to the value of the life of the plaintiff's husband and permitting them to consider his age, health, the money he was making, his probable loss of employment, his voluntarily abstaining from work, dullness in business, reduction in wages, increasing infirmities of age, etc., was not erroneous as being unauthorized by the evidence, or for any other of the reasons assigned in the third and sixteenth grounds of the motion for new trial.
3. Though approved by the trial judge as true and correct, recitals of fact in a ground of the motion for new trial which conflict with facts appearing in the record, or which are shown by the record to be untrue are controlled adversely thereby; and the ground of the motion being dependent on the truth of such recitals of fact for its validity, if any, will not be considered by this court.
4. In an action by a widow for damages for the negligence homicide of her husband, a charge authorizing the jury to find for the plaintiff if they found that she or her husband was made to suffer as a result of the collision of the automobile driven by an alleged agent and servant of the defendant, which collision admittedly caused the husband's injury and death, was erroneous, where the only real questions involved were whether the driver of the automobile was acting as an agent of the defendant at the time of the collision, and, if so, whether he was negligent in any of the ways alleged by the plaintiff.
5. The refusal of a timely submitted written request to charge, which is legal and pertinent and adjusted to the issues in the case, though the judge may have charged generally on the subject thereof, was error.
(a) The refusal of a timely written request to charge on a vital issue in the case, which charge was not in substance anywhere embodied in the charge as given, was error.
6. It was error for the judge, in giving an instruction requested by the defendant to preface his instruction with the words: 'The defendant also claims.' Such wording was calculated to weaken the instruction and to leave the jury with the impression that the statement was merely a statement of one of the defendant's contentions and that it did not have the sanction of the trial judge as a statement of the law that they were bound to take from him.
7. A special ground of a motion for new trial, complaining of the exclusion of impeaching evidence of contradictory statements by the plaintiff, which does not show that a proper foundation for such evidence was laid before offering it as required by § 38-1803 of the Code, is without merit.
8. The charge on comparative negligence, and the duty of the plaintiff's husband to exercise ordinary care to avoid the consequences of the defendant's negligence after the same became apparent to him or should have become apparent to him, was confusing and subject to the criticisms leveled at it by the 11th and 12th special grounds of the motion for new trial.
9. Grounds of the motion for new trial, complaining of matters not likely to recur on another trial, and the general grounds of the motion are not passed upon.
Lizzie Roberson sued Moses C. Johnson for damages resulting from the death of her husband, who was alleged to have died as the result of injuries received while he was riding as a fare-paying passenger in a taxicab owned by the defendant and operated by his agent and servant. On the trial of the case the jury returned a verdict for the plaintiff for $4,500. The defendant made a motion for new trial on the general and 16 special grounds. The order of the trial judge overruling that motion is assigned as error.
Titus, Altman & Johnson, Thomasville, for plaintiff in error.
Andrews & Andrews, Alexander, Vann & Lilly, Thomasville, for defendant in error.
1. The first and second special grounds of the motion for new trial complain of the failure of the trial judge to charge without request that, before the plaintiff could recover, she must prove by a preponderance of the evidence at least one of the acts of negligence alleged in her petition.
The plaintiff alleged that the defendant's driver was negligent in two respects. These allegations were denied by the defendant. The judge charged that 'The burden of proof rests upon the plaintiff to satisfy the jury of the truth of his [her] case by a preponderance of the evidence'; and that 'The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.' While we recognize the rule that it is the duty of the judge to charge the jury fully without request on every substantial controlling and vital issue in the case, Allmond v. Mount Vernon Bank, 53 Ga.App. 565, 186 S.E. 581; Scott Co. v. Crain, 55 Ga.App. 514, 190 S.E. 629, and that in a negligence action the plaintiff's right of recovery is confined to proof of the acts of negligence alleged in the petition, Jackson v. Ely, 56 Ga.App. 763(2), 194 S.E. 40, nevertheless the rule that the plaintiff must prove by a preponderance of the evidence that the defendant was guilty of some one or more of the acts of negligence charged in the petition is but a specific application of the general rule that the burden is on the party asserting a fact to prove its existence to the jury's satisfaction by a preponderance of the evidence; and where, as here, the court fully instructed the jury as to the general proposition, and elsewhere fully and adequately defined for the jury the term 'preponderance of the evidence,' and while it perhaps would have been better for the judge to have instructed the jury specifically that the plaintiff must prove that the defendant's driver was negligent in one or more of the ways alleged before she would have been entitled to recover of the defendant, we cannot say as matter of law that, in the absence of a timely written request therefor, it was error for the judge to fail to instruct the jury as complained of in special grounds 1 and 2.
2. Special grounds 3 and 16 of the amended motion for new trial complain of a portion of the charge which, in submitting to the jury the question as to the value of the life of the deceased, permitted them to consider the age of the deceased, his health, the money he was making, his probable loss of employment, his voluntarily abstaining from work, dullness in business, reduction in wages, increasing infirmities of age, etc.
This charge was not erroneous because not authorized by the evidence, as contended by the plaintiff in error. It is conceded that the charge was abstractly correct. The testimony of the plaintiff as to the age of her husband at the time he was killed, to the effect that he told her he was 32, was not without probative value because it was merely hearsay. The general rule seems to be that evidence as to age, relationship, pedigree, etc. may be shown by general repute in the family or by statements of relatives by blood or marriage since deceased, made ante lite motam. Code, § 38-303. Hines v. Donaldson, 193 Ga. 783, 795, 20 S.E.2d 134, distinguishing and explaining Garner v. Wood, 188 Ga. 463, 465(4), 4 S.E.2d 137, relied on by the plaintiff in error. See also McCollum v. State, 119 Ga. 308(1), 46 S.E. 413. We cannot say that the evidence of the age of the plaintiff's husband was not of probative value or such as would not authorize the charge in question, or that there was not sufficient evidence to authorize the jury to find the value of the plaintiff's husband's life at the time he was killed. There is more evidence upon which the jury could make such a finding in this case than there was in Savannah, Florida & W. Ry. Co. v. Stewart, 71 Ga. 427, 437, which is relied on by the plaintiff in error, and it is therefore distinguishable from this case. The other elements of the charge related to matters of common knowledge which the jury are presumed to be as cognizant of as any one, and of which the court properly reminded the jury in instructing them on the method of assessing the damages or of finding the value of the life of the plaintiff's husband. The court did not err in overruling special grounds 3 and 16 of the motion for new trial.
3. Special ground 4 complains of a portion of the charge as being erroneous in the use of the word 'without,' where the word 'with' should have been used. While the trial judge approved the statements of fact in the amended motion as being true and correct, it appears that, in the approved charge which is made a part of the record in this case, the charge as given by the judge shows that he used the word 'with.' Where there is a conflict between the recitals of fact in the motion for new trial, and in the record, the record controls, James v. Hudson, 170 Ga. 321(1), 152 S.E. 829; and since the record shows that no error was committed in the charge as complained of in this ground of the motion, the ground will not be considered.
4. Special grounds 5 and 6 of the motion for new trial complain of a portion of the charge as being an incorrect statement of the law, as being misleading and confusing to the jury, and as authorizing them to find for the plaintiff if they believed that the plaintiff was made to suffer as a result of the collision. The portion of the charge thus...
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