Palmer v. Stevens, 42265

Citation154 S.E.2d 803,115 Ga.App. 398
Decision Date14 March 1967
Docket NumberNo. 42265,No. 3,42265,3
PartiesEulis PALMER et al. v. Rachel STEVENS
CourtUnited States Court of Appeals (Georgia)

Stewart, Sartain & Carey, Gainesville, Merritt & Pruitt, Glyndon C. Pruitt, Buford, for appellants.

Webb & Fowler, W. Howard Fowler, Lawrenceville, for appellee.

Syllabus Opinion by the Court.

BELL, Presiding Judge.

While crossing a street at nighttime, pedestrian Willie Palmer was struck down by an automobile driven by defendant Rachel Stevens. Palmer's injuries caused his death two days later. His children, by next friend, and his administrator filed these suits to recover for wrongful death and necessary expenses. The trial court sustained defendant's special demurrers to certain allegations of negligence in both petitions. In response to the court's ruling on the demurrers, plaintiffs recast their petitions, omitting the matter as to which the demurrers were sustained. On trial of the cases the jury returned verdicts for the defendant. Plaintiffs took these appeals from the judgments entered on the verdicts.

1. An Act approved March 10, 1966 (Ga.L.1966, pp. 451-452) amended Code § 81-1001, adding to it the following provision: 'Either party who amends or attempts to amend his petition or other pleadings in response to an order or other ruling of the court shall not be held to have waived his objection to such order or ruling, but may thereafter take exception thereto as in other cases.' Compare, Adamson v. Maddox, 111 Ga.App. 533, 534(1), 142 S.E.2d 313. Although the trial court made its ruling on defendant's demurrers prior to the Act of 1966, a reviewing court should apply the law as it exists at the time of its judgment, rather than the law prevailing at the time of the judgment under 197 Ga. 194, 208, 28 S.E.2d 759 and citations; law will impair no vested rights under the prior law. City of Valdosta v. Singleton, 197 Ga. 194, 208, 28 S.E.2d 759 and Citations; Fulton County v. Spratlin, 210 Ga. 447(2), 80 S.E.2d 780. We must therefore pass upon plaintiffs' exceptions to the sustaining of defendant's demurrers.

2. Subparagraph 18(e) in both petitions charged that defendant was guilty of negligence 'In failing to drive at an appropriate reduced speed when approaching and going around a curve, and when approaching a hillcrest, and when approaching a pedestrian upon said roadway, which is in violation of Code (Ann.) section 68-1626(c) (Section 48(c) of Ga.L.1953 (Nov.-Dec.Sess.) pp. 556, 577) and is negligence per se.'

The trial court sustained defendant's demurrers to portions of this allegation on several grounds, 'The gist of the violation of the statute * * * is driving at a speed greater than is reasonable and prudent under all the circumstances. * * * To find such a violation of Code Ann. § 68-1626 to be negligence per se, a finding of common-law negligence must first be made. Grayson v. Yarbrough, 103 Ga.App. 243, 247, 119 S.E.2d 41.' Stanley v. Squadrito, 107 Ga.App. 651, 655, 131 S.E.2d 227; Phillips v. Howard, 109 Ga.App. 404, 409, 136 S.E.2d 473. Plaintiffs had also alleged in their petitions (Subparagraph 18(g)) that defendant was guilty of negligence 'in operating said vehicle at a speed which was greater than reasonable and prudent under the conditions prevailing,' and this allegation was retained in the recast petitions. As Subparagraphs 18(e) and 18(g) were substantially similar, one of them was merely superfluous and added no benefit to plaintiffs. Thus, while the court technically erred in sustaining defendant's imperfect special demurrers to Subparagraph 18(e) of the petitions, nevertheless the elimination of a part of this paragraph, if error, was harmless to plaintiffs.

3. Subparagraph 18(k) of the petitions charged that defendant was negligent 'In failing to steer said vehicle to the left and thereby avoid striking' Willie Palmer. This specification of negligence sought to inject into the cases the theory of last clear chance, and it was an essential part of plaintiffs' pleadings only insofar as that theory was applicable in the cases. Under the last clear chance theory, as applied in Georgia, it is only where the defendant knows of the other person's perilous situation and realizes or has reason to realize the other's helpless condition, that defendant is charged with a duty of using with reasonable care and competence his then existing ability to avoid harming the other person. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 670, 88 S.E.2d 6; Carr v. John J. Woodside Storage Co., Inc., 103 Ga.App. 858, 859, 120 S.E.2d 907, rev. on another point 217 Ga. 438, 123 S.E.2d 261. The undisputed evidence in these cases disclosed that defendant did not discover Willie Palmer's presence on the highway until she had hit him. While defendant might have been found negligent in failing to keep a proper lookout ahead and in failing to anticipate Willie Palmer's presence on the highway, nevertheless, in the absence of knowledge that Palmer was there, the evidence did not authorize a finding of negligence based on the last clear chance theory. Under these circumstances, specifications alleging that defendant was negligent in failing to keep a proper lookout ahead and in failing to anticipate Palmer's presence on the highway, together with other specifications retained in the recast petitions, afforded plaintiffs a complete basis in their pleadings for finding as to all the particular acts of negligence which could be proved. In this status of the evidence, which we are authorized to consider in passing upon special demurrers (Fidelity & Deposit Co. v. Norwood, 38 Ga.App. 534, 541, 144 S.E. 387), it is obvious that plaintiffs were not harmed by the trial court's rulings sustaining defective special demurrers to Subparagraph 18(k) of the petitions and causing the elimination of this allegation.

4. Subparagraphs 18(l) and 18(m) of the petitions contained general averments of negligence, and were mere surplusage. Where plaintiffs retained in their recast petitions particular averments of negligence, it was not harmful error to eliminate these general allegations.

It was not harmful error on special demurrer to eliminate Subparagraph 18(n) of the petitions, which charged that defendant was negligent 'In failing to use her sense of sight to insure safe operation of said vehicle,' where plaintiffs retained in their recast petitions an allegation that defendant was guilty of negligence 'In failing to keep a diligent and proper lookout ahead.'

5. The sixth enumeration complains that during the course of the trial the court expressed an opinion on the evidence. The record discloses that when the judge made the remarks in question, plaintiffs' counsel failed to object or move for mistrial. When the court, in a colloquy with counsel makes remarks which are prejudicial or indicate an opinion upon the merits of the case, proper objection, or a motion for mistrial should be made at the time of the occurrence; in the absence of timely objection or motion for mistrial the allegedly offensive matter cannot be urged for the first time as a ground in error proceedings. Moore v. McAfee, 151 Ga. 270, 275-276(11), 106 S.E. 274; Royal Crown Bottling Co. v. Stiles, 82 Ga.App. 254, 262-265(3), 60 S.E.2d 815; Head v. Pollard Lumber Sales, 88 Ga.App. 757, 759(2), 77 S.E.2d 827; Lumbermen's Underwriting Alliance v. Jessup, 100 Ga.App. 518, 533(5), 112 S.E.2d 337; Darby v. McNelley, 103 Ga.App. 570, 571(2), 120 S.E.2d 153; Flanigan v. Reville, 107 Ga.App. 382, 383(5), 130 S.E.2d 258; Wood v. Hamilton, 109 Ga.App. 608, 610(2), 137 S.E.2d 61; Mitchell v. Gay, 111 Ga.App. 867, 874, 143 S.E.2d 568. The sixth enumeration will not be considered.

6. The trial court did not err in allowing defendant to examine Stella Palmer as a witness. The record shows that plaintiffs' counsel invoked the 'rule' for sequestration of defendant's witnesses. Assuming, without deciding, that the rule was applicable to Mrs. Palmer and assuming that she remained in the courtroom during progress of the trial and heard the testimony of other witnesses, these circumstances would not render her testimony incompetent. 'Where witnesses have been separated at request of counsel, a person not sworn and sequestered, but who has remained in the court-room and heard the testimony in the case, is still competent to testify as a witness in the cause. If he has been purposely kept in the courtroom in disobedience of the orders of the court, with knowledge of the fact that he was to be used as a witness, the fact that he has heard the testimony goes to his credit * * * but it is error to refuse to allow him to testify, unless the party offering him has expressly waived the right to use the witness.' Howard v. Echols, 31 Ga.App. 420(1), 120 S.E. 815; Metropolitan Street R. Co. v. Johnson, 90 Ga. 500(4), 16 S.E. 49.

7. Evidence offered by plaintiff to show the amount of money which the deceased contributed each month to the childrens' support was irrelevant. See Central of Ga. R. Co. v. Prior, 142 Ga. 536, 537, 83 S.E. 117; Western & Atlantic R.R. v. Gray, 172 Ga. 286, 305, 157 S.E. 482; Seaboard Airline R. Co. v. Young, 40 Ga.App. 4, 8, 148 S.E. 757. It was not error to exclude this evidence.

8. The ninth enumeration complains that the court erred in allowing defendant's counsel to argue certain improper matter over plaintiffs' objection. The alleged improper argument is nowhere included in the transcript before this court. Section 10(d) of the 1965 Appellate Practice Act (Ga.L.1965, pp. 18, 24; Code Ann. § 6-805(d)) contemplates that all proceedings on trial which may be called in question on appeal (including all colloquies, arguments to the jury, objections and rulings of the court) shall be included in the written transcript of the proceedings in the trial court. This section declares it to be the intention of the Act 'that all these matters appear in the record rather than in assignments...

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