Land v. Robb

• Decision Date: 11 March 1969
• Docket Number: No. 1,No. 43926,43926,1
• Citation: 119 Ga.App. 349,166 S.E.2d 904
• Parties: Lake View LAND v. David A. ROBB et al
• Court: Georgia Court of Appeals

Page 904

166 S.E.2d 904

119 Ga.App. 349

Lake View LAND v. David A. ROBB et al.

No. 43926.

Court of Appeals of Georgia, Division No. 1.

March 11, 1969.

E. J. Clower, Rome, for appellant.

Rogers, Magruder & Hoyt, J. Clinton Sumner, Jr., F. Larry Salmon, Rome, for appellees.

Syllabus Opinion by the Court

WHITMAN, Judge.

This case involves suits for damages arising out of an automobile collision. Plaintiff Robb sued defendant Land alleging negligence. Defendant Land filed a cross-action alleging plaintiff Robb was negligent.

Because of the evidence presented at the trial, it was necessary to charge the jury on the doctrine of comparative negligence. The two enumerations of error relate to one sentence of the trial court's comparative negligence charge, to wit: 'As an illustration, if you belief that Mr. Robb was two-thirds at fault, and Mr. Land was one-third at fault, no recovery could be had by Mr. Land.'

The court, obviously should have ended the above sentence with 'Mr. Robb.' The question is whether reversal is required because of the mistake. Held:

The mistake occurred during that portion of the charge in which the jury was being instructed as to the law applicable to Robb's action (the main action) against Land. The instructions were as follows: 'Considering first the suit brought by Mr. Robb, to recover damages from the defendant, I charge you that if you find the plaintiff, Mr. Robb, and the defendant, Mr. Land, were both at fault, you shall apply the following principles of law: If the negligence of Mr. Robb was equal to the negligence of Mr. Land, there could be no recovery by Mr. Robb. If the negligence of Mr. Robb was greater than the negligence of Mr. Land, Mr. Robb could not recover from the defendant. If the negligence of Mr. Robb was less than that of Mr. Land, and Mr. Robb is otherwise entitled to recover against the defendant, the total amount of damages in dollars and cents should be reduced to the amount of negligence chargeable to Mr. Robb. As an illustration, if you believe that Mr. Robb was two-thirds at fault, and Mr. Land was one-third at fault, no recovery could be had by Mr. Land. If you believe that Mr. Robb was one-half at fault, and Mr. Land was one-half at fault, the negligence of each would offset the other, and no recovery could be had by Mr. Robb. If you believe that Mr. Robb was one-third at fault, and Mr. Land was two-thirds at fault, and you believe Mr. Robb is otherwise entitled to recover, under the evidence and the instructions I give you, a certain sum of money, then the amount of recovery would be reduced by one-third of that sum, because Mr. Robb cannot recover for that part of the negligence which he contributed, but only that part of the total negligence contributed by the defendant.'

Immediately thereafter, with regard to the defendant's cross action, the court ...