Johnston v. Pittard, 28212.

• Decision Date: 22 April 1940
• Docket Number: No. 28212.,28212.
• Citation: 8 S.E.2d 717
• Parties: JOHNSTON . v. PITTARD et al.
• Court: Georgia Court of Appeals

8 S.E.2d 717

JOHNSTON .

v.PITTARD et al.

No. 28212.

Court of Appeals of Georgia, Division No. 2.

April 22, 1940.

Syllabus by the Court.

1. In a suit for damages based on simple negligence, charges of the court on contributory negligence and comparative negligence are error requiring the grant of a now trial in the absence of evidence authorizing a finding that plaintiff was negligent in the circumstances.

2. It was error to charge the jury on the law of accident.

3. It was error to charge that a purpose to commit an unlawful act might defeat recovery when the act had no connection with the injury sued for.

Error from Superior Court, Greene County; J. B. Jackson, Judge.

Suit by D. P. Johnston, Jr., against Davis Pittard and others, for injuries alleged to have been sustained by plaintiff as result of defendants' conduct in the perpetration of a practical joke. To review a judgment for defendants, the plaintiff brings error. Reversed.

The plaintiff sued the six defendants in this case for personal injuries alleged to have resulted from the conduct of the defendants in the perpetration of a practical joke. He alleged substantially that one of the defendants persuaded him to with him to a certain house in the country to seesome "wild women" and that when they arrived there a man's voice front the house yelled and that two shots were fired, one in the direction of the plaintiff; that plaintiff ran in desperation and fear of his life and fell into a ditch as a result of which he sustained injuries; that the defendants had planned the joke; that there were no wild women at the house, which was a vacant farm house, etc. The defenses were that the plaintiff was injured because of his own negligence and was engaged in an illegal enterprise. The jury found for the defendants and the exception is to the overruling of the motion for new trial.

Joe D. Quillian, of Winder, and Park & Park, of Greensboro, for plaintiff in error.

Jos. G. Faust and Miles W. Lewis, both of Greensboro, for defendants in error.

FELTON, Judge.

1. The action was one for simple negligence, and it was error for the court to give in charge to the jury the questions of contributory and comparative negligence in the absence of any evidence authorizing a finding that the plaintiff was negligent under the circumstances.

2. It was error to give in charge the law on the question of accident. The defendants would be liable for such consequences of their acts as they should have foreseen and if an occurrence such...