Limbert v. Bishop
| Citation | 101 S.E.2d 148,96 Ga.App. 652 |
| Decision Date | 08 November 1957 |
| Docket Number | No. 1,No. 36884,36884,1 |
| Parties | D. A. LIMBERT v. J. S. BLSHOP |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
The trial court did not err in denying the defendant's amended motion for new trial.
James S. Bishop sued Donald A. Limbert, trading as Don A. Limbert Heating & Plumbing Company, for injuries allegedly received when a truck, owned by the defendant and being operated by his employee in the scope of his employment, backed into the plaintiff while the plaintiff was servicing an automobile in a service station where the plaintiff was employed. The jury returned a verdict for the plaintiff which was made the judgment of the trial court. The defendant filed a motion for new trial on the general grounds and on the ground that the verdict was excessive. Thereafter the original motion for new trial was amended by the addition of 8 special grounds. The amended motion for new trial was denied and the defendant excepts.
Greene & Neely, Atlanta, B. Hugh Burgess, Decatur, for plaintiff in error.
Bruce B. Edwards, Robert W. Cagle, William H. Whaley, Atlanta, Thomas O. Davis, Decatur, for defendant in error.
1. The first special ground of the amended motion for new trial contends that the trial court erred, even without a proper written request having been submitted, in failing to charge the jury on 'comparative negligence,' on the duty of the plaintiff to 'exercise ordinary care for his own safety,' and on the plaintiff's duty to exercise 'ordinary care to prevent the negligence of the defendant after such negligence was discovered.'
The evidence showed without dispute, that the defendant's truck was driven into the service station where the plaintiff was employed, and parked, that thereafter the defendant's employee got into such truck and backed it into the plaintiff while the plaintiff was standing with his back to such truck and in front of an automobile which he was servicing, and that the plaintiff had no knowledge of the negligence of the defendant's employee until the actual moment of impact of the defendant's truck with the plaintiff's person. There was no evidence that the plaintiff was in any way negligent, or that he had any knowledge of the negligence of the defendant's employee prior to the injury so that he could have taken any action to prevent such injury.
While the defendant's answer may have authorized the introduction of evidence as to the failure of the plaintiff to exercise ordinary care for his own safety, either before or after the negligence of the defendant's employee became apparent, or on comparative negligence, no such evidence was introduced. 'It is the duty of the court to instruct the jury as to the law applicable to every material issue in the case, even in the absence of any request; but, where an issue, though raised in the pleadings, is not supported in the evidence, it is error to charge upon any issue which is not supported by evidence.' Investors' Syndicate v. Thompson, 172 Ga. 203(2) (b), 158 S.E. 20. See also Jackson v. Camp & Brown Produce Co., 92 Ga.App. 359(3), 88 S.E.2d 540.
It might be well to state at this point that a verdict for the plaintiff was authorized under the evidence. However, the contention of the defendant that the verdict was excessive will be considered later.
2. Special ground 2 alleges that the trial court erred in charging the jury on the following allegation of negligence contained in the plaintiff's petition: 'In backing the defendant's truck down, over and across a public sidewalk.'
At the time this allegation of negligence was given in charge to the jury the trial court was reading those allegations of negligence from the plaintiff's petition which had not been stricken by the plaintiff or removed as issues of the case by the trial court.
'It is not improper, in charging the jury, to state the contentions made by the allegations of the petition, Barbre v. Scott, 75 Ga.App. 524, 534, 43 S.E.2d 760, or to give them by a narrative reading of the petition, McGee v. Bennett, 72 Ga.App. 271, 273, 33 S.E.2d 577, even though some of the contentions in either instance be unsupported by the evidence, Armour & Company v. Roberts, 63 Ga.App. 846, 847, 12 S.E.2d 376.' Moffet v. McCurry, 84 Ga.App. 853, 858, 67 S.E.2d 807, 813. The excerpt from the charge complained of would not have been error even if there had been no evidence in support of such contention, however, in the present case there was evidence adduced that the defendant's truck had been parked where it was at least partially across the sidewalk, and that the defendant's employee backed the truck from this parked position to the point of impact with the plaintiff.
3. In special ground 3 error is assigned on the following excerpt from the charge:
In support of the contention that such charge was reversible error the defendant relies on the recent Supreme Court decision in Executive Committee of the Baptist Convention v. Ferguson, 213 Ga. 441, 99 S.E.2d 150, and the cases cited therein. In that case the jury was instructed with reference to the allegations of negligence contained in the plaintiff's petition, whereas here the charge limited the jury to the consideration of the allegations of negligence read to the jury. In that case one of the allegations of negligence had been stricken on demurrer, however, the allegation still appeared in the petition and had not been physically stricken from it. In the case sub judice, according to the record before this court, there had been no demurrer, sustained to any allegation of negligence contained in such petition so as to require a finding that such allegation of negligence would not constitute a legal basis for a recovery.
The trial court read to the jury those allegations of negligence which remained in the case after the plaintiff, by amendment, struck some of the allegations of negligence, and after the trial court ruled out others, and the jury was instructed to consider only those allegations of negligence which had been read to it by the trial court. Therefore, this case is, as shown herein, distinguishable from those cases relied on by the defendant and the charge complained of was not error for any reason assigned.
4. Special ground 4 alleges that the trial court erred in charging that the defendant denied the allegation of agency in the plaintiff's petition when there was no dispute as to the fact that the driver of the truck was the employee of the defendant and was operating such truck within the scope of his employment at the time the plaintiff allegedly received the injuries sued for.
While it is true that the defendant, when called for the purpose of cross-examination by the plaintiff, freely admitted that the driver of the truck was his employee and was acting within the scope of his employment at the time such truck struck the plaintiff, his answer was not so clear for he 'denied as alleged' those paragraphs of the petition which would, if admitted, have bound him with the negligence of the driver of the truck. "A trial judge may, in his discretion (and at his peril), state, in his charge to the jury, that a certain fact which is admitted or wholly undisputed has been proved; but he is not required, even though so requested, to state to the jury that an issuable fact is true, or has been sufficiently proved, even though it be undisputed in the evidence. The better practice is to allow the jury to determine even the question as to whether any issuable fact proved by either party is uncontradicted or undisputed.' Scott v. Valdosta, M. & W. R. Co., 13 Ga.App. 65(1), 78 S.E. 784; New Ware furniture Co. v. Reynolds, 16 Ga.App. 19 (1a), 84 S.E. 491; Elrod v. Chamblee, 26 Ga.App. 703(1), 106 S.E. 915...
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...115 Ga.App. 396, 154 S.E.2d 721; (4) collateral source employer's payment of medical bills and money to live on: Limbert v. Bishop 96 Ga.App. 652, 657, 101 S.E.2d 148; (5) collateral source payments by relatives in substantially the amount of lost wages: Story v. Pless, 100 Ga.App. 756, 112......
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