Roberson v. Hart
| Decision Date | 05 December 1978 |
| Docket Number | No. 56298,56298 |
| Citation | 251 S.E.2d 173,148 Ga.App. 343 |
| Parties | ROBERSON v. HART. |
| Court | Georgia Court of Appeals |
George W. Fryhofer, Waynesboro, for appellant.
Dye, Miller, Bowen & Tucker, A. Rowland Dye, Thomas W. Tucker, A. Montague Miller, Augusta, Lewis & Lewis, Preston B. Lewis, Jr., Waynesboro, for appellee.
In a trial arising from an automobile collision, judgment was entered on a jury verdict in favor of the defendant. The sole enumeration of error in this appeal concerns the trial court's refusal to charge in accordance with appellant's written request to charge.
1. At the conclusion of the jury charge, plaintiff-appellant objected as follows: "The plaintiff excepts to failure of the Court to charge plaintiff's request to charge number 5 on the ground that this was adjusted to the facts in evidence . . ."
Appellee, citing Harper v. Ga. S. & F. R. Co., 140 Ga.App. 802(7), 232 S.E.2d 118, urges that this objection to the refusal to charge is insufficient to invoke appellate review of asserted errors as a matter of right. It would follow from this argument that since the right to review was not preserved, review can be had only as authorized by Code Ann. § 70-207(c). We disagree.
Harper is inapposite because it concerns the sufficiency of objections to charges as given. Although past decisions may suggest that objections to the court's refusal to charge as requested are controlled by the same rule governing objections to the failure to charge or objections to the charges as given (see in this regard, DuFour v. Martin, 117 Ga.App. 160(3), 159 S.E.2d 450; and McChargue v. Black Grading Contractors, Inc., 122 Ga.App. 1(10), 176 S.E.2d 212), the Supreme Court has held otherwise. See Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8(2), 195 S.E.2d 417. Thus, " '(w)here the trial court refuse(d) to instruct the jury in accordance with a timely submitted written request, in order to secure review of that action on appeal it is unnecessary for the party to state grounds of objection to such refusal at the conclusion of the charge.' " Jones v. Spindel, 128 Ga. App. 88(10), 196 S.E.2d 22, 32. It is only necessary that the refusal to charge be objected to at some point. Compare Lewis v. Noonan, 142 Ga.App. 654(4), 236 S.E.2d 900.
Accordingly, appellee's argument that appellant's objection was insufficient is not well taken, and, under the authority of Continental Cas. Co., supra, we deem it proper to review appellant's enumeration of error.
2. Request to Charge No. 5 concerned sudden emergency and read as follows:
"Ladies and Gentlemen, I charge you that one confronted with a sudden emergency is not chargeable with the same circumspection of conduct as in other cases, and where one driving an automobile along a public road, upon coming over a hill, is confronted by a vehicle approaching from the opposite direction and over the center line of the road, an emergency is thereby created as a matter of law, and though his subsequent conduct may appear, in retrospect, to have been unwise, he will not be barred of a recovery from the driver of the vehicle being driven over the center line of the road by the mere fact that at the time of the collision between the two, his vehicle was being driven on the left side of the road." See Williams v. Slusser, 104 Ga.App. 412, 413, 121 S.E.2d 796. (Williams is specifically cited as authority in appellant's timely written request.)
Appellant concedes that the court's charge included a general charge on sudden emergency (not in the language of Request to Charge No. 5). On appeal, it is urged that a portion of the refused charge (to the effect that a mere violation of a rule of the road would not bar appellant's recovery) was not covered in the general charge and that this omission constituted reversible error. We disagree.
A. "A requested charge should be given only where it embraces a correct and complete principle of law which has not been included in the general instructions given and where the request is pertinent...
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...with the words "without request." Id. at 856(3), 360 S.E.2d 415. The whole court decision quoted with approval Roberson v. Hart, 148 Ga.App. 343, 344(1), 251 S.E.2d 173 (1978), where it was explained "(a)lthough past decisions may suggest that objections to the court's refusal to charge as ......
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SCM Corp. v. Thermo Structural Products, Inc.
...infected with any inaccuracy, even though the request may not be so erroneous as to require reversal if given." Roberson v. Hart, 148 Ga.App. 343, 345, 251 S.E.2d 173, 174-175. B. Since lost profits were not claimed by appellee, appellants' requests to charge as to lost profits were not aut......
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Reed v. Dixon
...is infected with any inaccuracy even though the request may not be so erroneous as to require reversal if given. Roberson v. Hart, 148 Ga.App. 343, 345, 251 S.E.2d 173 (1978). Insofar as this request can be taken "as requiring more than ordinary care in the light of the circumstances, it is......
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...Thus, a tortfeasor cannot assert an emergency defense when the emergency was created by the tortfeasor. See, e. g., Roberson v. Hart, 148 Ga.App. 343(2B), 251 S.E.2d 173. An assailant cannot provoke a victim's conduct and raise self-defense as a justification. Jackson v. State, 239 Ga. 40(3......