Lewis v. Williams
| Decision Date | 29 January 1949 |
| Docket Number | No. 32265.,32265. |
| Citation | 51 S.E.2d. 532 |
| Parties | LEWIS. v. WILLIAMS et al. |
| Court | Georgia Court of Appeals |
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Syllabus by the Court.
1. In this action, which comes under the provisions of the Code (Ann.Supp.), § 105-1306, it was unnecessary for the plaintiffs to allege which is the husband and which are the children of the deceased, their ages, or how the value of the life should be apportioned among those entitled to sue; and the special demurrers to the petition based on such grounds were properly overruled.
(a) The plaintiffs named in the action were sufficiently identified by the allegation that they were the husband and children of the deceased.
(b) While a petition by a minor is properly brought by a next friend rather than by the minor alone, such defect is not reached by a demurrer to the petition, where it is not apparent from the petition that the plaintiff is a minor.
(c) In the event of recovery in the action, the measure of damages is the value of the life of the deceased, to which the plaintiffs would be entitled jointly.
2. No error is shown by the denial of the request of the defendant in the form of a motion to disqualify the jury as to employees of the Georgia Power Company.
3. The court did not err in refusing to give the requested charge as complained of in special ground 2 of the motion.
(a) The rule stated in the first portion of the requested charge applies to intersecting highways and streets where right of way rules are involved, and was not applicable to this case where there was a requirement to stop before crossing the intersection and defendant failed to stop.
(b) The last sentence of the requested charge is erroneous as a matter of law in that, if charged as requested, it would have amounted to an expression of opinion by the court that certain acts of the defendant were not negligence, and what acts do or do not constitute negligence, except where a particular act or acts are declared by law to be negligence, is a matter exclusively for determination by the jury.
4. Special grounds 3, 4, and 5 of the motion were properly overruled.
5. The court did not err in overruling the motion of defendant for a new trial.
Error from City Court of Macon; Cecil A. Baldwin, Judge,
Action by Thomas Williams, husband, and Addie Williams Wesley and others, children, against the Putzel Electric Company, Inc., and Perry Lewis for wrongful death of Rosa Lee Williams, who was killed by a corporation truck driven by the individual defendant. To review the judgment, the individual defendant brings error.
Judgment affirmed.
Thomas Williams, Addie Williams Wesley, Thomas Williams, Jr., Charles Williams, Hattie Mae Williams, Ada Williams, and Dorothy Williams sued the Putzel Electric Company, Inc., and Perry Lewis for $15,000 in damages in the City Court of Macon on account of the death of Rosa Lee Williams. According to the petition plaintiffs are the husband and children of the deceased, who was killed on October 18, 1947, by an automobile truck of the electric company, driven at the time by Lewis, acting within the scope of his employment with the electric company, at a speed in excess of 45 miles per hour, which proceeded by a stop sign erected on Forrest Avenue in Macon, Georgia, at the intersection with Third Avenue, struck a Georgia Power Company bus moving on Third Avenue at a speed not in excess of 15 miles per hour, and thenran into Rosa Lee Williams, who was on the sidewalk near the intersection. It was alleged that Perry Lewis was negligent in that he violated §§ 32, 33, and 71 of the traffic ordinance of the city of Macon. The defendants filed general and special demurrers to the petition, which were overruled. Exceptions pendente lite were filed, and the case proceeded to trial before a jury.
From the evidence the following appears: On October 18, 1947, around 4:00 p. m., a bus of the Georgia Power Company was traveling in a westerly direction along Third Avenue in Macon at a speed estimated by different witnesses as 8 to 20 miles per hour. At the intersection of Third Avenue and Forrest Avenue this bus was struck by an International 3/4 ton pickup truck, having the name of Putzel Electric Company on its door and body and driven by Perry Lewis, which was traveling in a northerly direction along Forrest Avenue past a boulevard stop sign (placed there by the Police Department) and across Third Avenue at a speed estimated by different witnesses as up to 45 miles per hour. The right rear fender and wheel of the truck struck the front of the bus, and the rear end of the truck spun around, struck and apparently instantly killed Rosa Lee Williams, who was on the Third Avenue sidewalk, and then came to rest, partially on the sidewalk and partially in the street on Forrest Avenue, at the northwest corner of the intersection, headed in the direction from which it came. The bus stopped almost instantly after the collision, moving only a yard or so. There were no stop signs on Third Avenue at this intersection. The driver of the truck testified that he did not stop as he went past the stop sign on Forrest Avenue, but slowed down to about 5 or 6 miles per hour and went past the sign in order to get a clear view of Third Avenue, and then speeded up so as to get across ahead of the bus. Other witnesses testified that he did not even slow down as he went past the stop sign. The truck was equipped with a governor which retarded the speed of the engine to 35 miles per hour, but when the truck was not in gear this would not control the rolling speed of the vehicle. At this intersection Third Avenue is slightly up grade to the west, and Forrest Avenue is slightly down grade each way from Third Avenue, although practically level. One witness for the defendant was a teacher of mathematics and physics, and based on hypothetical premises, including the weight of the vehicles and his knowledge of the scene of the accident and the length of skid marks appearing in the street, estimated the speed of the bus at the time of the impact as between 12 and
20 miles per hour, and the maximum speed of the truck as 20 miles per hour. Rosa Lee Williams was 55 at the time of her death, and was survived by Thomas Williams, her husband, and six children,.the other plaintiffs. All the children were over
21 at the time of the trial (April, 1948) except Dorothy, age 20. There was evidence of the earning capacity of the deceased and the value of her services. Documentary evidence included certified copies of certain sections of the traffic ordinance of the city of Macon as follows: § 32: (This collision occurred in the 25 mile speed zone.) § 33: "All vehicles shall slow down to a rate of speed not greater than fifteen miles per hour when crossing intersecting streets, except on boulevards, where the maximum legal speed shall be permitted, and except as otherwise indicated by traffic signs." § 71: "It shall be unlawful for any person to fail to observe at certain street intersections traffic signs and markers bearing the words 'Stop' and 'Slow* placed there by the Police Department for the safety of pedestrians for the purpose of preventing accidents and expediting traffic." Other documentary evidence consisted of photographs and plats of the scene of the collision, a line from the Carlisle mortality tables showing an expectancy of 17.58 years for a person at age 55, and a table showing the speed, in multiples of 5 miles per hour, for an object traveling from 5 to 50 miles per hour, stated in terms of feet per second.
On motion of the defendant, Putzel Electric Company, a verdict was directed in its favor. The jury returned a verdict for $7,500 in favor of the plaintiffs against Perry Lewis, judgment was rendered accordingly, and the defendant, Perry Lewis, excepted to the judgment on demurrers and to the judgment overruling his motion for a new trial.
Joseph W. Popper, of Macon, for plaintiff in error.
Martin, Snow & Grant, of Macon, for defendant in error.
SUTTON, Chief Judge. (After stating the foregoing facts).
1. In regard to his special demurrers, the plaintiff in error insists upon the following propositions: (a) The petition should designate which of the parties is the husband and which are the children, (b) The ages of the children should be set out for the reason that if any of the children are minors they must sue by next friend, (c) The act provides that the husband and children suing jointly can recover the value of the life, and the jury should have the right to know and should determine how the value of the life should be apportioned among those entitled to sue. Code, § 105-1301 is as follows: "The word 'homicide' as used in this Chapter shall include all cases where the death of a human being results from a crime or from criminal or other negligence." Code, § 105-1302 is as follows: "A widow, or, if no widow, a child or children, minor or sui juris, may recover for the homicide of the husband or parent, the full value of the life of the decedent, as shown by the evidence." Code (Ann.Supp.) § 105-1306 is as follows: "The husband and/or child or children may recover for the homicide of the wife or mother, and those surviving at the time the action is brought shall sue jointly and not separately, with the right to recover the full value of the life of the decedent, as shown by the evidence, and with...
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Yeager v. Jacobs
...reached. Martin v. McAfee & Co., 31 Ga.App. 690, 695(2), 122 S.E. 71; Jordan v. Lee, 51 Ga.App. 99(2), 179 S.E. 739; Lewis v. Williams, 78 Ga.App. 494, 501(3), 51 S.E.2d 532; Georgia Power Co. v. Blum, 80 Ga.App. 618, 628(2), 57 S.E.2d 18; Long Const. Co. v. Ryals, 102 Ga.App. 66(1), 115 S.......
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