Parsons v. Grant

• Decision Date: 02 April 1957
• Docket Number: No. 36598,No. 2,36598,2
• Citation: 95 Ga.App. 431,98 S.E.2d 219
• Parties: Mary PARSONS v. B. W. GRANT et al
• Court: Georgia Court of Appeals

Page 219

98 S.E.2d 219

95 Ga.App. 431

Mary PARSONS v. B. W. GRANT et al.

No. 36598.

Court of Appeals of Georgia, Division No. 2.

April 2, 1957.

Syllabus by the Court.

1. The evidence as to the manner in which the defendant, Mrs. Grant, approached Highway 23 supports the verdict, and shows no cause for reversal as to the general grounds.

2. The refusal of the court to permit a question and answer regarding the result of injuries received by the plaintiff will not require a reversal, whether erroneous or not, unless it appears that such rejection affects the finding of the jury on the question of liability or non-liability.

3. A charge that in order to be guilty of gross negligence, a defendant must have been the proximate and moving cause of an injury is not erroneous, when proximate cause is alleged in the petition.

4. It is not reversible error for the court to fail to charge the jury the principle of law of concurring negligence of the defendants and a third person in the absence of a request and in the absence of allegations in the petition as to such negligence or liability or non-liability of such third person.

Mrs. Mary Parsons brought a personal injury suit against Mrs. Naomi J. Grant and B. W. Grant. The petition alleges: that the plaintiff was riding as a guest passenger in a car owned by Mr. Grant being driven by his wife as his agent; that the car operate by Mrs. Grant was approaching the intersection of U. S. Highway 23 and Simmons Street in Suwanee, Georgia; that Mrs. Grant brought her car to a stop before entering said intersection and at the same time a car being operated by James Ernest Dalton, was approaching said highway rapidly, with the burning lights of his car clearly visible to Mrs. Grant; that regardless of the approaching car Mrs. Grant suddenly started her car and drove into the said highway into the path of the car driven by Dalton, colliding with the same with great force and violence thereby injuring the plaintiff by such grossly negligent act. The petition sets out the injuries allegedly received by the plaintiff and alleges that she has been unable to resume her former job as seamstress at the J. P. Allen Company and has been unable to resume her duties 'in addition to her regular work in performing her household duties caring for her husband'.

The defendants filed an answer of general denial of all negligence against Mrs. Grant and alleged that Dalton was negligent, setting up his acts of negligence and that the negligence of Dalton was the proximate cause of the collision. The jury found against the plaintiff.

The plaintiff filed a motion for a new trial on the statutory grounds and thereafter added four special grounds. The court denied this motion, and this judgment is assigned as error.

The evidence shows substantially that the plaintiff testified as to position of the cars involved in the collision; that Mrs. Grant accommodated the witness by stopping at Suwanee; that it was after that stop, when the car was entering Highway 23, that the collision occurred; that the cars had the car lights in use; that the car in which the plaintiff was riding had 'progressed 30 to 40 feet down Highway 23 before we were hit'. She also testified that the car was hit when they were in the intersection.

Paul Parsons, husband on the plaintiff, testified that he was in a car immediately to the rear of the car in which his wife was driving; that he saw Mrs. Grant when she pulled out into Highway 23; that 'she pulled out real slow'; that the car driven by Dalton was something like a block or two blocks away when Mrs. Grant pulled out into the highway; that the Dalton car approached from over a hill; that judging from the speed Mrs. Grant used when she pulled into the highway, he as a mechanic, thought the motor was dead; that she was driving about ten miles per hour, into the path of the approaching car. He estimated that the Dalton car was going about forty miles per hour. The defendant, Mrs. Grant, testified that she was seventy years old when the collision occurred; that she was seventy-two years old at the time of the trial; that she stopped at the intersection for some time and finally some one said: 'Go ahead, Mama'; that she went nearly two lengths of the car before she got hit; that she had had the car she was driving about twenty-four hours. Mrs. Grant recalled that she went off the highway to Suwanee at the request of the plaintiff; that after she got back to the highway, after taking the plaintiff to deliver a package, she had a clear way as she pulled into it; that the driver of the car which hit her was 'drinking heavy,' and that he stated he was driving sixty miles per hour.

Minnie Bell Barrett, daughter of the plaintiff, and daughter-in-law of Mrs. Grant, testified: that she heard the Dalton car coming and told the plaintiff 'You better hurry'; that she saw the lights of the Dalton car as the car came over the top of the hill. The record shows that there was a case sounded as Minnie Bell Barrett v. Naomi J. Grant and B. W. Grant. It appears that there was some conflict between the testimony from this witness in that trial and in the trial now under consideration. Upon being recalled, the same witness testified that she 'did not see the car, but saw lights or a reflection of lights over the hill.' There was conflicting evidence at the two trials on this point also from this witness. She testified that the Dalton car hit the back fender of the car being driven by the defendant.

B. W. Grant, a defendant, testified that when the car his wife was driving and the car he was in immediately behind the car driven by Mrs. Grant reached the highway, 'there was a right smart bit of traffic and we waited a little while until the highway got clear and then my wife started'; that the Dalton car appeared; that the car his wife was driving went onto the highway but the car in which the witness was riding stopped right quick at the edge of the highway; that his wife's car got straightened out in the highway before the collision.

There was no evidence from the State Patrol or other traffic officer.

Edward T. Brock, Atlanta, Irwin R. Kimzey, Clarkesville, for plaintiff in error.

Ellard & Frankum, Clarkesville, Kimzey & Crawford, Cornelia, for defendants in error.

GARDNER, Presiding Judge.

1. The evidence is sufficient to sustain the verdict of the jury in favor of the defendants. We have set out all the evidence which relates to the manner in which the defendant, Mrs. Grant, approached Highway 23 and there is nothing which is contrary to the verdict of the jury. The evidence supports the verdict as to the general grounds.

2. Special ground 1 assigns error because the court sustained an objection to a question by counsel for the plaintiff, and the answer of the plaintiff thereto. Counsel propounded the following question: 'Mrs. Parsons, immediately following your accident and for sometime therefrom, were you able to perform your household duties?' The plaintiff answered: 'I wasn's able to do my housework like washing and ironing for almost two years.' Counsel for the plaintiff contends that this testimony was relevant and material and that the exclusion of such was hurtful and prejudicial to the plaintiff and that such refusal to permit the testimony denied her the right to prove the allegations of her petition and was highly prejudicial and harmful to her. The question of the extent of injuries to the plaintiff and the alleged resulting inability to perform certain duties did not go to the question of whose negligence and what negligence caused the collision, and had no bearing upon the question of the liability or non-liability of the defendants. The jury determined that the acts of the defendants were not the causative factor and that the plaintiff was not entitled to recover. Evidence as to the injuries of the plaintiff, if permitted, would have no bearing on determining the negligence of the parties concerned and could not have produced a different verdict. See Rountree & Co. v. Gaulden, 123 Ga. 449(4), 51 S.E. 346. In Parsons v. Foshee, 80 Ga.App. 127(4), 55 S.E.2d 386, this court said: 'The refusal of the court to admit certain testimony as to the defendant's injuries and the charge on the defendant's damages * * * do not show harmful error, inasmuch as the jury found * * * on the primary issue of liability.' In that case, as in the case at bar, the jury resolved the issue on the question of negligence, and never got to the point of considering the extent of the defendant's damage (in that case) or injuries (in the case at bar). See Howard v. Georgia Ry. & Power Co., 35 Ga.App. 273(8), 133 S.E. 57. The exclusion of the question and answer was harmless to the plaintiff, and whether erroneous or not, it does not appear that the ruling affected the finding of the jury on the question of liability or non-liability. See McBride v. Georgia Railway & Electric Co., 125 Ga. 515(1), 54 S.E. 674. See also Owens v. Service Fire Ins. Co. of N. Y., 90 Ga.App. 553(3), 83 S.E.2d 249; Archer v. Kelley, 194 Ga. 117(4), 21 S.E.2d 51, and Robinson v. Murray, 198 Ga. 690(2), 32 S.E.2d 496, Special ground 1 is not meritorious.

3. Special ground 2 assigns error because it is contended that the court erred in instructing the jury as follows: 'If, on the other hand, a member of his family should keep or maintain a car for his or her own personal pleasure, the acts in using such car would not be imputable to the husband, or parent, as the case might be.' This excerpt followed this charge of the court on this point: 'As previously stated to you, in giving you the contentions of the parties, the plaintiff contends that the automobile being driven by Mrs. Naomi J. Grant was the automobile of B. W. Grant, that he kept and maintained the automobile as a family use car and that Mrs. Grant was his wife, and, therefore, if she was negligent in the operation of that automobile the negligence would...