Pendry v. Addison
| Decision Date | 03 April 1962 |
| Docket Number | No. 39249,No. 2,39249,2 |
| Citation | 125 S.E.2d 523,105 Ga.App. 673 |
| Parties | J. C. PENDRY v. John ADDISON et al |
| Court | Georgia Court of Appeals |
Marshall L. Fountain, Louisville, for plaintiff in error.
Hull, Willingham, Towill & Norman, Walter A. Reiser, Jr., Augusta, Abbot & Abbot, James C. Abbot, Louisville, for defendant in error. Syllabus Opinion by the Court
J. C. Pendry filed suit against John Addison and Fred Evans seeking damages for personal injuries he sustained when he drove his truck against a farm tractor and trailer which was being driven by John Addison. Plaintiff's petition alleges that the tractor was owned by Fred Evans and at the time of the collision was being driven by John Addison as an employee of Fred Evans in the performance of his duties as such employee. During the course of the trial the court granted a nonsuit as to Fred Evans. The jury returned a verdict in favor of the plaintiff against the defendant John Addison. The plaintiff filed a motion for a new trial on the usual general grounds and later, by amendment, added several special grounds. The court overruled the motion. The court's rulings in granting a nonsuit and in overruling the motion for a new trial are assigned as error in the plaintiff's bill of exceptions. Held:
1. Special grounds of a motion for a new trial assigning error on the failure of the court to charge upon a particular principle of law without setting forth the evidence authorizing such charge are incomplete. Hardwick v. Georgia Power Co., 100 Ga.App. 38, 110 S.E.2d 24; Hodges v. Gay, 100 Ga.App. 210, 110 S.E.id 570; Valdosta Coca Cola Bottling Works v. Montgomery, 102 Ga.App. 440, 116 S.E.2d 675. Also: 'It is not a good assignment of error on a portion of the judge's charge which states a correct principle of law applicable to the case that some other correct and appropriate instruction was not given.' Roberts v. State, 88 Ga.App. 767(1(a)), 77 S.E.2d 825. See Lightfoot v. Southeastern Liquid Fertilizer Co., 102 Ga.App. 512, 116 S.E.2d 651.
2. Fields v. Jackson, 102 Ga.App. 117(5), 115 S.E.2d 877.
3. In one instance while charging the jury, the judge used the word 'plaintiff' when he should have said 'defendant'. Movant contends that this was error, however, when this charge is considered as a whole, it is clear that the inadvertent use of 'plaintiff' instead of 'defendant' was a slip of the tongue which was not likely to confuse or mislead the jury, and, therefore, was not harmful. In another case when ruling upon a similar question, this court said: 'The inadvertent use of the word 'plaintiff' instead of 'defendant,' and vice versa, in the charge of the court to the jury, is not cause for a new trial, and the other special grounds of the motion for a new trial disclose no reversible error.' Walton v. Smith, 43 Ga.App. 308(2), 158 S.E. 641. For other applicable cases see Bell v. Proctor, 92 Ga.App. 759, 90 S.E.2d 84; Turner v. Elliott, 127 Ga. 338(4), 56 S.E. 434.
4. There is no merit to special ground 7 of the motion by which movant contends that a witness could not give his opinion of the speed of the plaintiff's vehicle at the time the plaintiff passed the witness about 400 yards from the scene of the collision, since the evidence shows that the witness gave sufficient facts on which to base an opinion of such speed. Fisher Motor Car Co. v. Seymour & Allen, 9 Ga.App. 465, 71 S.E. 764; Rentz v. Collins, 51 Ga.App. 782, 181 S.E. 678; Augusta Ry. & Electric Co. v. Arthur, 3 Ga.App. 513, 60 S.E. 213; Ellison v. Evans, 85 Ga.App. 292, 69 S.E.2d 94.
5. The evidence supports the verdict. Therefore, in view of what has been said with reference to the special grounds of the motion for a new trial, the court did not err in overruling the motion.
6. The...
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