Powell v. Mauldin

• Decision Date: 04 October 1960
• Docket Number: No. 38361,No. 2,38361,2
• Citation: 102 Ga.App. 606,117 S.E.2d 234
• Parties: D. E. POWELL, Jr., et al. v. Leo L. MAULDIN
• Court: Georgia Court of Appeals

Page 234

117 S.E.2d 234

102 Ga.App. 606

D. E. POWELL, Jr., et al. v. Leo L. MAULDIN.

No. 38361.

Court of Appeals of Georgia, Division No. 2.

Oct. 4, 1960.

Rehearing Denied Oct. 19, 1960.

Robert B. Williamson, Sylvester, for plaintiff in error.

Ford & Houston, Sylvester, for defendant in error.

Syllabus Opinion by the Court.

TOWNSEND, Judge.

1. Negligence of the defendant in a tort action which is not a part of the proximate cause of the plaintiff's injury will not support a recovery. It is accordingly error for the court to instruct the jury that, should they believe the defendant was negligently operating a motor vehicle and the plaintiff was exercising ordinary care, they should find in favor of the plaintiff, and also to instruct them that, should they believe the defendant Delton Powell guilty of negligence they should find in favor of the plaintiff against such defendant irrespective of their verdict in regard to the defendant Dennis Powell, the court not instructing the jury in connection therewith that negligence of the defendants or either of them which would authorize a verdict in favor of the plaintiff under such rules must have proximately contributed as a cause of the injury received by the plaintiff. Jackson v. Matlock, 87 Ga.App. 593(4), 74 S.E.2d 667. Such omission will require a reversal except in those instances where a charge on proximate cause has been given in such close relation to the charge on negligent that it is obvious that the jury must have understood that the negligence referred to in the excerpt from the charge complained of was in fact negligence proximately causing the injuries received. See Harmon v. Southwell, 98 Ga.App. 261(3), 105 S.E.2d 596; Noland v. England, 101 Ga.App. 306(4), 113 S.E.2d 649. Except for a passing reference thereto in stating the contentions of the parties, the court made no reference anywhere in the charge to the doctrine of proximate cause, save in defining actionable negligence, which definition very remotely preceded the instructions complained of. Nor did the court anywhere state that the 'actionable negligence' which he defined was that same negligence which he referred to later in the charge, and it is extremely doubtful that a jury of laymen would have understood from such reference that they should understand all subsequent references to 'negligence' as meaning that negligence on the part of either party which caused or proximately contributed to the injuries received. Accordingly, under the ruling in Jackson v. Matlock, 87 Ga.App. 593, 74 S.E.2d 667, supra, special grounds 5 and 6 of the motion for a new trial were meritorious.

2. The plaintiff's case was laid on the theory that his injuries, suffered in a collision, were proximately caused by the manner in which the defendant Delton Powell, Jr., operated a farm tractor owned by his grandfather Dennis Powell, and that the latter was liable under the doctrine of respondeat superior because Delton Powell, Jr., was at the time within the scope of his employment by his grandfather in driving the farm tractor, the operation of which caused the plaintiff's injuries. On the motion of Dennis Powell for a judgment notwithstanding the verdict the sole issue is whether the evidence authorizes a finding that such relationship existed. If not, mere ownership of the tractor by Dennis Powell would not be sufficient to sustain a judgment against...