Jordan v. Fowler

• Decision Date: 08 November 1961
• Docket Number: No. 3,No. 39009,39009,3
• Citation: 123 S.E.2d 334,104 Ga.App. 824
• Parties: Walter JORDAN et al. v. Roger FOWLER
• Court: Georgia Court of Appeals

Page 334

123 S.E.2d 334

104 Ga.App. 824

Walter JORDAN et al. v. Roger FOWLER.

No. 39009.

Court of Appeals of Georgia, Division No. 3.

Nov. 8, 1961.

Rehearing Denied Nov. 21, 1961.

Syllabus by the Court

1. 'The affidavits of jurors may be taken to sustain but not to impeach their verdict.' Code § 110-109. Under this Code section a special ground of a motion for new trial complaining that the verdict was improperly influenced by a communication to the jurors during their deliberation, which ground is supported solely by the affidavits of four of the jurors, shows no cause for the grant of a new trial. Etheridge v. State, 43 Ga.App. 579(1), 159 S.E. 747.

2. Under the facts of this case, after the judge had fully charged on the law respecting the effect of emergency as it affected the defendant's liability, it was not error, as complained of in special ground 2, for the judge to further charge that one who has created or caused an emergency cannot take advantage of such emergency to excuse his conduct ensuing upon such emergency arising.

3. Special ground 3 of the motion complains of a portion of the charge which, when considered with the entire charge, was not erroneous for any reason assigned.

4. The verdict was not so excessive as to warrant the inference of gross mistake or undue bias.

5. The evidence authorized the verdict for the plaintiff, and the trial court did not err in overruling the general grounds of the motion for a new trial.

Eugene A. Epting, Erwin, Birchmore & Epting, Athens, Joseph S. Skelton, Hartwell, for plaintiffs in error.

William O. Carter, Hartwell, for defendant in error.

CARLISLE, Presiding Judge.

This was a suit by a father to recover hospital, medical and burial expenses of his minor son who was killed while riding as a guest passenger in an automobile owned by the defendant, Walter Jordan, and being driven at the time by his minor son, Max Jordan. Briefly stated, the evidence tended to show that the injuries resulting in the death of the plaintiff's son occurred when the automobile in which he was riding along a dirt road made a left turn into an intersecting dirt road, and after traveling some 30 feet ran into a ditch along the right side of the road, continued traveling with two wheels in the ditch a distance of some 70 yards mounting an embankment and hurtling some 20 feet through the air where it struck a large tree, totally demolishing the right front end of the automobile and inflicting the injuries to the plaintiff's son from which he died the next day. This collision occurred in the nighttime and the evidence showed that the road was dry. The defendant, Max Jordan, testified that just prior to running into the ditch he had turned the corner at a speed of some six or eight miles per hour; that at the time he was operating the automobile in second gear; that he thought he was caused to lose control of the automobile by his right front wheel running into some loose sand and gravel in the road, and that after he ran into the ditch the car continued to accelerate until it struck the tree. He contended that after the automobile ran into the ditch he continuously endeavored to stop it, or to turn it back into the road, but that his foot slipped off the brake pedal onto the gas pedal.

1, 2. Headnotes 1 and 2 require no elaboration.

3. Special ground 3 complains of a portion of the charge on damages, the criticism being that it directed the jury to return a verdict for the plaintiff for loss of services without regard to the question as to whether there was liability. Preceding this portion of the charge, the judge instructed the jury, 'If you should find from the evidence that Max Jordan was negligent, but you do not find that his neglegence amounted to gross negligence as herein defined, then the plaintiff would not be entitled to recover in this case. * * * I charge you that in order to recover in this case the plaintiff must prove that Max Jordan was guilty of one or more of the specific acts of negligence set out in plaintiff's petition, and that such negligence amounted to gross negligence as defined elsewhere in this charge, and that such gross negligence was the proximate cause of the death of Jerry Fowler. * * * If you find from the evidence under the rules of law which the court has given you in charge that the plaintiff is entitled to recover against either or both of the defendants, then you will apply the law which the court will now give you in charge.' The portion of the charge complained of is the fourth paragraph following the last excerpt quoted. 'In considering whether a charge excepted to is error, * * * it is proper that it be considered in its context and in connection with the entire charge. 'A charge, torn to pieces and scattered in disjointed fragments, may seem objectionable, but when put together and considered as a whole may be perfectly sound. Brown v. Matthews, 79 Ga. 1 (4 S.E. 13).' Buttersworth v. State, 200 Ga. 13, 24(2), 36 S.E.2d 301, 302. * * * It was not necessary or proper for the trial judge in instructing the jury to repeat in immediate connection with each proposition of law charged all the qualifications and exceptions applicable to it. To require him to do so would so lengthen and complicate the charge as to render it impossible to ever charge the jury fully and completely.' Millwood v. State, 102 Ga.App. 180, 186(4), 187, 115 S.E.2d 829, 834.

4. 'The value to a parent of the services of a minor child is not determinable solely from evidence as to the amount of money the child earns or is capable of earning during its minority. The value of a child's services may be determined from all the evidence, including evidence as to the age and precocity of the child, its earning capacity, and the services rendered by it, the circumstances of the family and the living conditions, and 'from experience and a knowledge of human affairs on the part of the jury.' Savannah Electric Co. v. Dixon, 18 Ga.App. 314(3), 89 S.E. 373.' Seaboard Air-Line R. Co. v. Sarman, 38 Ga.App. 637, 640(11), 144 S.E. 810, 814. Among those things which the jury may take into consideration from its experience and knowledge of human affairs is the period of inflation now existing. Fields v. Jackson, 102 Ga.App. 117, 123, 115 S.E.2d 877. Under the foregoing rules, while the evidence of the actual earnings of the deceased might have limited the authorized recovery to a sum substantially less than that found, yet where there was evidence that the deceased was a precocious, industrious, hardworking, 15-year-old boy, the jury were authorized to infer that his rate of earnings would probably have increased considerably prior to his reaching his majority. This court cannot say, under all the facts and circumstances of this case, that the verdict for $7,500 was so excessive as to warrant the inference of gross mistake or undue bias. Western & Atlantic R. R. v. Burnett, 79 Ga.App. 530, 542, 54 S.E.2d 357.

5. The negligence charged against the defendants in this case were the acts of Max Jordan in allegedly accelerating the speed of the automobile upon commencing to make the left turn, in thereafter continuously accelerating the speed of the automobile, in operating the automobile into the ditch and against the ditch bank, in failing to reduce the speed of the automobile, in failing to control the speed of the automobile and in operating the vehicle off the road and into the oak tree. All such acts were characterized as gross negligence. Max Jordan, one of the defendants, was the only witness testifying directly as to what happened on the occasion in question. He testified that he approached the intersection of the Golf Course Road and Hickory Crossing Road and slowed the automobile to approximately six to eight miles per hour, putting it in second gear; that he...