Porter v. Bland
| Decision Date | 04 April 1962 |
| Docket Number | No. 39323,No. 1,39323,1 |
| Citation | 125 S.E.2d 713,105 Ga.App. 703 |
| Parties | Bill PORTER v. Prentice BLAND |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. A material misstatement by the court of a defendant's contention which could be interpreted by the jury as an admission of negligence is prejudicial error.
2. Where a new trial is granted on other grounds, it is unnecessary for this court to rule upon an obviously garbled version of a statute as the error will not likely re-occur on a subsequent trial.
3. Under the factual situation in this case, a charge that the operator of a motor vehicle upon the highways is required to operate on the right of the center line of the direction in which he is traveling was irrelevant.
4. While the portion of the charge relating to recovery of damages for loss of a foot or member of the body was not authorized by the evidence, it was not prejudicial error as the plaintiff appeared personally before the jury which could see he had not suffered such loss.
5. Where the pleading and evidence would authorize recovery for both pain and suffering and a diminution in one's capacity to earn money, the court must charge on the measure of damages applicable to these differing injuries. Where different elements of damages are claimed for which dissimilar rules are to be applied, these varying rules must be given in the charge to the jury although there is no written request to do so.
6. The charge as to mental pain and suffering was not erroneous as authorizing a double recovery.
Plaintiff brought action against defendant Porter and another seeking to recover alleged damages for past and present pain and suffering, future pain and suffering, loss of past earnings as a result of injuries, reduction of his former earning capacity by 50 percent, and property damage to a truck the last item being stricken in the course of the trial.
There were no substantial contradictions in the evidence. The plaintiff and his witnesses testified to the defendant's vehicle striking the rear of the truck in which the plaintiff was riding as they were both proceeding in the same direction on the highway. While the defendant's answer alleged the plaintiff did not have proper lights on the vehicle as required by the statute, there was no proof of this, and the uncontradicted testimony was that plaintiff's vehicle was equipped with operating tail lights. Plaintiff testified that he had not been able to work for some time since the accident and suffered pain when working; that, 'Since I had these injuries I tried to work about three weeks but quit on account of my physical condition'; that he does temporary work now; that he can't paint over his head because when he looks up he can't see; that at the time of trial he was working at Fort Stewart, but Plaintiff further testified that it was four months after the accident before he 'could think about doing anything, but I am back on the job now trying to work because I have to work.'
The jury returned a verdict in favor of the plaintiff in the amount of $12,000, which was reduced to judgment. Defendant Porter filed a motion for new trial, to which ten special grounds were added by amendment. After hearing, the motion for new trial was overruled, and defendant excepted.
Hitch, Miller, Beckmann & Simpson, Joe R. Young, Jr., Savannah, for plaintiff in error.
R. L. Dawson, Ludowici, for defendant in error.
1. The first special ground of the motion for a new trial urges that the trial court erred in explaining one of the contentions of the defendant to the jury in the following language: 'Denies that * * * denies all other paragraphs of plaintiff's petition and further alleges that Stanley * * * the other defendant * * * was driving his automobile at the time and place alleged in the petition when suddenly there appeared a truck driven by a named person in which the plaintiff was a passenger, but it was dark at the time and the lights of Porter's car were burning * * * Were not burning.'
This explanation by the court stated finally that the contention of the defendant Porter, was that the lights of his own car were not burning. As the collision under suit happened at night, this misstatement by the court of the defendant's contention could have been material and prejudicial and may have been interpreted by the jury as an admission of negligence.
A material misstatement of the contention of the parties is prejudicial error. City of Summerville v. Woodard, 97 Ga.App. 662(2), 104 S.E.2d 507, and authorities there cited. While an obvious slip of the tongue does not constitute such error in a charge as to require reversal (Becker v. Donalson, 138 Ga. 634(5a), 75 S.E. 1122), here this statement by the court completely changed the contention of the defendant from a correct to an incorrect one. Where a trial judge misstates the contention of a party so as to convey to the jury, in effect, that the party has made an admission of negligent conduct, the error is clearly material and harmful.
The trial court erred in overruling the motion for new trial on special ground 1.
2. Special ground 2 contends the court erred in giving a charge to the jury upon burden of proof. The court, after charging the first sentence of Code § 38-103, gave what appears in the record as a garbled and incorrect statement of the last sentence of this statute. Apparently, this garbled quote in the record occurred through some stenographic mistake, but regardless of its cause, we are bound by it as it reads in the record. While this portion of the charge was erroneous and was not corrected, since a new trial is ordered on other grounds, we find it unnecessary to rule upon special ground 2. It is unlikely that in the second trial this obvious mistake will be repeated.
3. Special ground 3 was abandoned. Special ground 4 asserts that the court erred in charging in effect that the operator of a motor vehicle upon the highways of the state is required to operate on the right of the center line in the direction in which he is traveling, except when passing traffic going in the same direction, and that a violation of any acts of the legislature is negligence per se. The defendant's contention is that this charge was not applicable to the facts and pleadings in the case and was highly prejudicial. We think this charge was irrelevant, as under the uncontradicted evidence the plaintiff was on his proper side of the road when his vehicle was struck from the rear by the defendant's automobile. The statute charged was not involved under the facts of this case. The trial court erred in overruling special ground 4 of the motion for new trial.
4. Special ground 5 contends the court erred in charging the jury that in estimating the damage it may consider the suffering the plaintiff has endured at the time of and since the injury and for mental suffering he 'may have or experienced (sic) throughout life for the loss of a foot or any member of his body or injury to any portion of his anatomy, and for the impairment of his physical strength and vigor.' It is urged that this portion of the charge was highly prejudicial in that it authorized the jury to compensate the plaintiff for loss or injury to a foot or a member of his body when there was no evidence in the case regarding any such injury...
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...Young, 105 Ga.App. 391, 400(4), 124 S.E.2d 795), and I wrote the other with Judge Hall of this division concurring (Porter v. Bland, 105 Ga.App. 703, 708, 125 S.E.2d 713). Strangely enough, under the present confused status of prior decisions on the point, both Judge Carlisle's Young and my......
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...of a new trial.' City of Summerville v. Woodard, 97 Ga.App. 662, 664-665(2), 104 S.E.2d 507, 509 and citations; Porter v. Bland, 105 Ga.App. 703, 705(1), 125 S.E.2d 713; Wheeler v. State Highway Dept., 106 Ga.App. 323, 324, 126 S.E.2d The charge objected to in this ground was prejudicial er......
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Walkley v. Dukes
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