Royal Crown Bottling Co. of Macon v. Bell

• Decision Date: 25 September 1959
• Docket Number: Nos. 1,2,No. 37747,37747,s. 1
• Citation: 111 S.E.2d 734,100 Ga.App. 438
• Parties: ROYAL CROWN BOTTLING COMPANY OF MACON v. Catherine E. BELL
• Court: Georgia Court of Appeals

Page 734

111 S.E.2d 734

100 Ga.App. 438

ROYAL CROWN BOTTLING COMPANY OF MACON v. Catherine E. BELL.

No. 37747.

Court of Appeals of Georgia, Division Nos. 1, 2.

Sept. 25, 1959.

Rehearing Denied Oct. 20, 1959.

Syllabus by the Court

1, 2. No error appears from the assignments of error to the judgments on the pleadings.

3-8. No error is shown by the special grounds of the motion for new trial.

9. The evidence authorized the verdict for the plaintiff.

Mrs. Catherine E. Bell sued the Royal Crown Bottling Company of Macon to recover the full value of the life of her daughter, Mrs. Patricia Bell Pennington, who was killed as the result of a collision between a pick-up truck being driven by the husband of the deceased and a truck owned by the defendant and being operated by an employee of the defendant in the course of the defendant's business. After various rulings on the pleadings, the case proceeded to trial and a verdict was returned for the plaintiff. The defendant's amended motion for new trial was denied as was its motion for a judgment non obstante veredicto in accordance with its motion for a directed verdict. The defendant now excepts to the judgments adverse to it.

Sell & Comer, E. S. Sell, Jr., John D. Comer, Macon, for plaintiff in error.

Jones, Sparks, Benton & Cork, Frank C. Jones, Macon, for defendant in error.

NICHOLS, Judge.

1. Error is assigned on the judgment overruling the general demurrer to the petition. The only contention made in the brief of the plaintiff in error is that a parent is not entitled to sue for the full value of the life of a child when such child is married. The contention being that recovery by a parent under Code (Ann.) § 105-1307 is limited to those cases where the parental bond has never been severed. Much emphasis is placed on the language used by this court in Central of Georgia Ry. Co. v. Tucker, 99 Ga.App. 52, 57, 107 S.E.2d 665, 668, as follows: 'Obviously the only exception to the right of the parent to bring an action for the value of the child's life has no reference to the child's age, but simply provides that in the event the child is married his wife and children have the exclusive right to use for the value of his life.' Following this quotation, relied on so heavily by the defendant, it was said: 'The statute does not provide any other limitation upon the right of the parent to sue for the value of the child's life and no other exception can be read into it.'

The holding in that case was not that once a person is married, the parent is forever precluded from bringing an action for the homicide of the child, but that where the person killed is survived by a wife or children, the statute gives them the exclusive right to sue for the full value of the life of the deceased. Accordingly, the contention of the defendant that its general demurrer should have been sustained since the parental bond had previously been severed by the marriage of the deceased, and although, under the allegations of the petition, she was not survived by a husband or children the plaintiff, her mother, was not entitled to sue for the full value of her life, is without merit.

2. The defendant demurred specially to paragraph 17 of the petition on the ground that the alleged value of the life of the deceased, a 17-year-old minor, was a conclusion not supported by well pleaded facts and called 'upon the plaintiff to allege the earning capacity of her daughter and other facts which might tend to show the value of the life of the decedent.'

The plaintiff demurred to one paragraph of the answer which alleged: 'Further answering, defendant says that the said John Ernest Pennington was appointed administrator of the estate of Harold Pennington by order of the Ordinary of Baldwin County, Georgia, dated July 7, 1958, that the said administrator and defendant herein have entered into an agreement for the compromise of his claim for the death of Patricia Bell Pennington, that the Ordinary of Baldwin County, after a consideration of the evidence, has approved said settlement, and that the administrator aforesaid has executed a release to defendant herein relieving it from any and all liability which defendant may have to said administrator on account of the death of Patricia Bell Pennington.' The plaintiff's demurrer to the quoted paragraph of the defendant's answer was sustained while the defendant's special demurrer to the paragraph of the petition was overruled, and the defendant assigns error on both judgments adverse to it.

Not only error but hurt must be shown in order to obtain a reversal of the judgment of the trial court (Gulick v. Mulcahy, 95 Ga.App. 158, 160, 97 S.E.2d 362), and, 'Ordinarily, error is presumed hurtful unless it appears to have had no effect upon the result of the trial.' Rogers v. Johnson, 94 Ga.App. 666, 682, 96 S.E.2d 285, 296. Therefore, assuming but not deciding that the judgments were error, the question presented is whether the defendant was harmed by the judgments adverse to it.

As to the value of the life of the deceased, a minor child who had not completed her education nor definitely selected a vocation, since the plaintiff could only recover the value of the life of the deceased as found by the enlightened conscience of the jury (see Betts Co. v. Hancock, 139 Ga. 198, 207, 77 S.E. 77, and Collins v. McPherson, 91, Ga.App. 347, 85 S.E.2d 552), it was harmless if error to overrule the defendant's special demurrer.

The defendnat, elsewhere than in the pargaraph of the answer sticken on demurrer, alleged that the deceased was survived by a husband and that therefore there was no right of action in the plaintiff, the mother of the deceased. Accordingly, its defense was pleaded, and whether the defendant has settled or compromised the claim for the death of the deceased with the administrator of the estate of the husband of the deceased would not relieve the defendant from liability in the present case unless the plaintiff's deceased daughter was in fact survived by her husband and if she was in fact survived by her husband the plaintiff here would not be entitled to recover regardless of whether the defendant had entered into a compromise or settlement with the administrator of the estate of the husband of the deceased. Therefore, the defendant was not harmed by the judgment striking the allegations of its answer quoted above.

3. Special ground 1 of the amended motion for new trial complains that a new trial should be granted because of alleged improper conduct on the part of a juror during the trial of the case. Under the decisions of the Supreme Court in Weatherby v. State, 213 Ga. 188, 197, 97 S.E.2d 698 and Morakes v. State, 201 Ga. 425(3), 40 S.E.2d 120, where, as here, there was conflicting evidence presented to the trial court as to the conduct of the juror and the trial court must pass on the issue and its discretion is not shown to have been abused such discretion will not be controlled by the reviewing court. Such is not made to appear in the case sub judice.

4. The defendant contends that the trial court erred in sustaining a plea of entrapment by the plaintiff's counsel during the trial of the case and permitting the plaintiff's witness to be cross-examined by the plaintiff's counsel. 'Specific grounds of objection to admission of evidence, not presented when the evidence was offered on the trial, do not raise questions for decision on review.' Wynes v. State, 182 Ga. 434(1), 185 S.E. 711. "Although there may be a ground of objection to testimony which would have been good if made, yet if the objection made be not good, it will be overruled.' Cox v. Cody & Co., 75 Ga. 175 (1a).' City of Commerce v. Bradford, 94 Ga.App. 284, 291, 94 S.E.2d 160, 162. The only ground of objection made upon the trial to the plea of entrapment and the cross-examination was as follows: 'We object to the Court permitting Mr. Jones to plead entrapment, because Mr. Jones has not shown that the witness has made any contradictory statement to him. The witness has merely explained the statement that he made, and we say the fair import of the statement that the witness made is perfectly consistent with what he just said on the stand, and at the appropriate time we will expect to introduce the memorandum in evidence, Your Honor, to show that there's no inconsistency. We don't think that Mr. Byars has changed anything.' Accordingly, the contentions that the evidence adduced, prior to the plea of entrapment, was not hurtful to the plaintiff, that the plaintiff was not surprised, etc., will not be considered.

The plaintiff introduced in evidence a written memorandum of a previous conversation out of court wherein the witness purportedly stated that he arrived at the scene of the collision at about 8:45 a. m., parked his automobile and walked to the scene but did not go down into the ditch, where both trucks had come to rest after the collision, and that shortly after he arrived, 'he heard a colored man in his early thirties with a Yankee accent telling a group of people that he was a doctor and that he had gone down to the pick-up truck shortly after the accident occurred, and that he thought the girl in the pick-up was alive but that the boy in the pick-up was dead.' The witness testified that the person who identified himself as a doctor stated that he went to the truck where the plaintiff's daughter was: 'Question: And what did he say he found, if anything? Answer: He said he found a hole up here--a big place in her thigh torn out; he said she was dead. Question: What did he say as to whether she was alive or dead when he first got there? Answer: He went down to see if she was dead; that was the remark that he made about her thigh; he said he saw this place on her side and he knew she was dead. Question: Did he make any statement about the boy? Answer: No; he didn't check the boy; he said the boy looked like he was dead, so he didn't check the boy; he was...