Phillips v. Howard

• Decision Date: 02 March 1964
• Docket Number: 40432,No. 3,Nos. 40418,s. 40418,3
• Citation: Phillips v. Howard, 136 S.E.2d 473, 109 Ga.App. 404 (Ga. App. 1964)
• Parties: Katherine M. PHILLIPS v. Carrie HOWARD et al. ATLANTA TRANSIT SYSTEM, INC., et al. v. Carrie HOWARD et al
• Court: Georgia Court of Appeals

Page 473

136 S.E.2d 473

109 Ga.App. 404

Katherine M. PHILLIPS v.Carrie HOWARD et al.

ATLANTA TRANSIT SYSTEM, INC., et al. v.Carrie HOWARD et al.

Nos. 40418, 40432.

Court of Appeals of Georgia, Division No. 3.

March 2, 1964.

Rehearing Denied March 19, 1964.

Syllabus by the Court

1.The petition having alleged an impossibility with reference to acts attributable to each of the defendants in driving their separate conveyances at the time and place at which they collided, it was erroneous for the court itself without sufficient explanation in a pre-trial order to rectify the defect by striking the allegations as to one defendant only when the imperfection applied equally to all.

2.(a) Ordinarily, it is not reversible error for the court to state merely a contention of a party as demonstrated by the pleadings even though there is no evidence or insufficient evidence to support the contention.

(b) However, where the court does more than merely state a contention not supported by the evidence and submits the unsupported contention as an issue in the case, charges the law on the contention and authorizes the jury to base a verdict on it, there can be no question but that the court has committed harmful and reversible error.

3.The words in the charge 'proximate or producing cause' are held to be synonymous with the words 'proximate cause.'

4.The technical error in the court's charge was not harmful and did not mislead the jury.

5.The special grounds of the motion for new trial considered in this division of the opinion have no merit.

6.The requested charge not being a correct statement of the law, the trial judge did not err in refusing to submit it to the jury.

7.The evidence supported the verdict.

8.The words contained in Code§ 38-1803'written statements made under oath in connection with some judicial proceedings' include previously taken depositions of a witness in a case.When properly offered the deposition is admissible for the purpose of impeaching a witness.

9.The verdict was not excessive.

10.None of the special grounds of the motion for a new trial considered in this division of the opinion have merit since the party testified that the speed of her vehicle was '30 to 35' miles per hour, and it had been stipulated that the maximum validly authorized speed at the time and place was '30' miles per hour.

11.The assignments of error on the matters considered in this division of the opinion were abandoned.

This is a suit for damages for personal injuries sustained by a paying passenger who was thrown from her seat into the aisle when the trackless trolley on which she was riding on Flat Shoals Avenue collided with a Ford automobile driven in a westerly direction on Memorial Drive by defendant Phillips, in the middle of the intersection of Memorial Drive and Flat Shoals Avenue about noon on February 26, 1959.The suit was brought by plaintiff against the Atlanta Transit Company and its agent, Bates (the trolley driver), and against Mrs. Phillips, the driver of the automobile involved in the collision.The jury returned a joint verdict of $7,500 against the three defendants.

In case No. 40432, defendants Bates and the Transit Company filed: an amended motion for new trial; a motion for judgment notwithstanding the verdict; and a direct exception to the action of the judge on pre-trial hearing in striking plaintiff's contention that defendant Phillips ran a red light.By a separate appeal the Transit Company and Bates brought exceptions on these judgments adverse to them.In case No. 40418, by a separate appeal, defendant Phillips excepted to the trial court's overruling several general and special demurrers as well as to the denial of her amended motion for new trial.From all of these exceptions by the defendants these two appeals were brought.

Edgar A. Neely, Jr., J. Douglas Stewart, Jule W. Felton, Jr., Hugh M. Dorsey, Jr., Atlanta, for plaintiff in error.

Walter B. Fincher, Atlanta, for defendant in error.

BELL, Presiding Judge.

Re: Case No. 40432.

1.By direct exceptions the defendantsAtlanta Transit Co. and Bates object to the trial court's striking at the pre-trial hearing a particular paragraph of the petition which in substance alleged that the other defendant, Phillips, had violated an officially installed red light when entering the intersection and colliding with the trackless trolley.

There is merit in this assignment.

In all material aspects the allegations relating to the running of the red light as charged against the Transit Company and Bates were identical with those charged against Phillips.As the trolley and the vehicle driven by Phillips approached the intersection from perpendicular angles these allegations resulted in the pleading of an impossibility.Construing the petition as to the course of the trolley and the automobile leading to the collision, together with the nature of the red light and the place of the collision, it is at once apparent that either one could have violated the red light, but simultaneously both could not have done so.

The trial court gave no valid reason why the portion of the pleading should have been stricken as to Phillips and left extant as to the other defendants.In absence of an admission by the plaintiff or of an amendment to the petition, neither of which occurrences appears in the court's pre-trial order, the particular portions of the pleadings on proper motion made should have been stricken as to each of the defendants.The impossibility of the result alleged in the pleadings having been manifest on its face, on motion made by only one of the parties the entirety of the defective part should have been stricken.It was erroneous for the court to allow the defect to be rectified by striking it only as to one defendant when the imperfection applied equally to all.

2.Special ground 4 of the motion for new trial of the Transit Co. and Bates urges as tending to confuse or mislead the jury and as harmful the judge's submission to the jury of a portion of the petition alleging specific negligence against these defendants, charging law applicable to this specification of negligence and allowing the jury to predicate a recovery on the point, where there was no evidence adduced on the trial sufficient to warrant a recovery on the alleged specification.

The specification of negligence in doubt was to the effect that the defendant Bates drove the bus of the Transit Company against a red light into the intersection where the collision occurred.

The evidence relevant to the issue reveals only the following: The plaintiff riding on the trolley did not see the light, but she admits that the bus stopped.Plaintiff's witness Terry also testified the bus stopped for a red light at the intersection in question.Her witness Jones testified that the bus stopped for the red light and started again when it changed to green.Witnesses Lowry and Audrey for Bates and the Transit Company testified that the bus started on a green light.Defendant Bates testified that he stopped on red and started on green.Defendant Phillips remembers seeing a green light governing traffic on her cross-street, but she could not identify the intersection at which it was located and admitted that the light might have been at another intersection other than where the collision occurred.There was no other evidence concerned with the point.An analysis of this evidence indicates rather convincingly that there was no evidence supporting the contention that the Atlanta Transit Company's trolley driven by Bates had violated the red stop light at the intersection.

Ordinarily, it is not reversible error for the court to state merely a contention of a party as demonstrated by the pleadings even though there is no evidence or insufficient evidence to support the contention.Matthews & Co. v. Seaboard Air-Line Ry., 17 Ga.App. 664(1), 87 S.E. 1097.However, the court did more than merely state a contention not supported by the evidence.The judge charged law applicable to the contention, submitted the unsupported contention as an issue in the case, and authorized the jury to base a verdict on it.Under these circumstances, there can be no question but that the court committed harmful and reversible error.'[I]nstruction as to law on a material issue, unauthorized by the evidence, is improper, and if it is not apparent that the jury could not have been misled thereby, is cause for a new trial.'Jones v. Hogans, 197 Ga. 404, 412, 29 S.E.2d 568.

The trial court erred in submitting to the jury the plaintiff's contention that the trolley ran through a red light into the intersection of Memorial Drive and Flat Shoals Avenue, in charging the law on the issue, and in authorizing the jury to base a recovery on the specification unsupported by the evidence.There is merit in this special ground of the motion.

3.Ground 5 of Transit Company's amended motion for new trial objected to the portion of the judge's charge which directed the jury to consider only the negligence of defendantTransit Company, if any, which the jury found to have been a 'proximate or producing cause' of plaintiff's injury.Transit argued that to give the jury an alternative under which they could find against defendant merely because the company's driver's act 'produced' an injury would allow the jury to omit legal or proximate causation completely.In Black's Dictionary (4th Ed.), however, 'proximate cause' is defined as 'the moving or producing cause,' citing Eberhardt v. Glasco Mut. Tel. Ass'n., 91 Kan. 763, 139 P. 416, 417;Buchanan v. Hurd Creamery Co., 215 Iowa 415, 246 N.W. 41.Webster defines 'proximate cause' as 'that which in ordinary natural sequence produces a specific result, no independent disturbing agencies intervening.'Cedrone v. Beck, 74 Ga.App. 488, 40 S.E.2d 388.

Transit Company relies on Dunbar v. Davis, 32 Ga.App. 192, 122 S.E. 895, in which it was held that the judge...