Kickasola v. Jim Wallace Oil Co.

Decision Date26 January 1978
Docket NumberNo. 3,No. 55020,55020,3
Citation144 Ga.App. 758,242 S.E.2d 483
CourtGeorgia Court of Appeals

G. Seals Aiken, John L. Respess, Jr., Atlanta, for appellant.

John E. Dougherty, Lokey & Bowden, Glenn Frick, Robert P. Bleiberg, Atlanta, for appellees.

DEEN, Presiding Judge.

1. The mother is a proper party plaintiff to recover the value of the life of a son tortiously killed unless he is survived by a wife or child. Code § 105-1307. Daniel Kickasola had no child. He lived with Coleen (Coco) Clark, together with the Clark parents at first and later by themselves. There was no ceremonial marriage, and Coleen did not take the Kickasola name until some time after the homicide; however, she was not legally obligated to do so if she did not want to. She testified that the couple had agreed and assumed that they were married to each other and they represented themselves to be man and wife, lived together as such, pooled their money, shared the same bedroom and, in her opinion, had been married about two years. There was testimony by other witnesses that they were considered man and wife, and by at least one of these witnesses that Kickasola had introduced her as his wife. The evidence may be shaky, but it is sufficient, if the jury chose to believe it, to constitute a common law marriage. Steed v. State, 80 Ga.App. 360, 56 S.E.2d 171; Chance v. Chance, 60 Ga.App. 889, 5 S.E.2d 399. It was proper to submit this question to the jury, to refuse to grant summary judgment or direct a verdict, and to deny the motion for a new trial based on the premise that there was no marriage and that the plaintiff, as mother of the decedent, was as a matter of law the proper party to bring the action.

2. As to the cause of death, it is not denied that the defendant Steed was employed by Jim Wallace Oil Company; that he opened the service station at an early hour of the morning and was there alone with a considerable amount of money when the Kickasola youth came up on his motorcycle and started placing gasoline in its tank; that Steed carried a pistol; that he went out to the gas pump where there was an altercation and that Steed shot and fatally wounded Kickasola. No one actually saw what happened. Steed eventually pleaded guilty to manslaughter. He testified in this case that he had unwittingly insulted his long-haired customer by calling him "ma'am," and that he was assaulted and eventually forced to fire his pistol in self-defense. He also attempted to explain the guilty plea by relating circumstances under which, having no money to hire counsel and having discussed the matter with court-appointed counsel for not over thirty minutes, he felt that since he had caused a death there was nothing else to do. In any event, there was some evidence from which a jury could have reached the conclusion that the shooting resulted from the fears of a reasonable man that his own life was in danger and that the defense was justified. In such event there was no tortious misconduct on his part and, again, a verdict for the defendant is sustainable. Code § 105-1801; Johnson v. Jackson, 140 Ga.App. 252, 260, 230 S.E.2d 756.

3. Enumerations of error referring to judicial instructions to which no objection was made in the trial court, such as those complained of in enumerations of error 4, 5, 6, 11, 12, 13, 17, 18, etc. will not be considered. Code § 70-207(a).

4. In a civil action, evidence that the defendant pleaded guilty to the act in a prior criminal proceeding is admissible in evidence and is to be considered along with all the other evidence as a circumstance to be weighed by the jury. Roper v. Scott, 77 Ga.App. 120, 124, 48 S.E.2d 118.

5. The instructions on what constitutes a common law marriage were correct. Code § 53-101; Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608.

6. The wrongful death statutes codified in Code Chapter 105-13 refer to death by homicide which "results from a crime or from criminal or other negligence." Code § 105-1301. The burden is of course upon the plaintiff to prove this essential element of the action, and the court properly so charged, since justification is a defense which renders the behavior noncriminal. The court also erroneously charged that "it was not necessary for the plaintiff to prove any negligence or any criminal act," according to the transcript. This was probably a lapsus linguae, if not a typographical error, but in any event it is one of which the plaintiff cannot complain since it is in her favor.

7. "Where a verdict is returned for the defendant, errors, if any, in a charge, failure to charge, or denial of request to charge, which deal with damages are regarded as harmless and afford no ground for reversal." Finley v. Franklin Aluminum Co., 132 Ga.App. 70, 73, 207 S.E.2d 543, 546.

8. "The object of all legal investigation is the discovery of the truth." Code § 38-101. It is the duty of the judge to instruct the jury on the general features of the law applicable to the issues, and leave to the jury all disputed questions of fact. Telfair County v. Webb, 119 Ga. 916, 47 S.E. 218. Hardly any set of jury instructions in civil...

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  • Thompson v. Spikes, CV486-316.
    • United States
    • U.S. District Court — Southern District of Georgia
    • June 22, 1987
    ...will be protected from liability. See O.C.G.A. § 51-1-11; Parrott v. Wilson, 707 F.2d 1262, 1272 (1983); Kickasola v. Jim Wallace Oil Co., 144 Ga.App. 758, 242 S.E.2d 483 (1978); Stewart v. Williams, supra, note 18, 243 Ga. 580, 582-83, 255 S.E.2d 699; see generally Pierson v. Ray, 386 U.S.......
  • Parrott v. Wilson
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 23, 1983
    ...was applied solely to cause harm), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981); Kickasola v. Jim Wallace Oil Co., 144 Ga.App. 758, 242 S.E.2d 483, 485 (Ga.App.) (jury could conclude that shooting resulted from fears of a reasonable man that his own life was in danger)......
  • Georgia Osteopathic Hosp., Inc. v. O'Neal
    • United States
    • Georgia Court of Appeals
    • February 28, 1991
    ...sending the issue to the jury and that the trial court accordingly erred in declining to do so. Accord Kickasola v. Jim Wallace Oil Co., 144 Ga.App. 758(1), 242 S.E.2d 483 (1978). 11. The hospital contends that the trial court erred in refusing to allow the forensic pathologist who had perf......
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    • United States
    • Georgia Court of Appeals
    • February 4, 2013
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