Royal Crown Bottling Co. of Gainesville v. Stiles
| Decision Date | 14 July 1950 |
| Docket Number | No. 1,No. 33052,33052,1 |
| Citation | 60 S.E.2d 815,82 Ga.App. 254 |
| Parties | ROYAL CROWN BOTTLING CO. OF GAINESVILLE et al. v. STILES |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The amendment to the petition did not add a new and distinct cause of action or a new and distinct party, and the original petition contained enough to amend by, and the trial judge did not err in overruling the demurrers in these respects, nor did he err in overruling the special demurrers to certain language in the petition.
2. (a) Testimony as to the amount received by the plaintiff in a settlement with his insurer for damage to his truck was not admissible as a circumstance illustrating the value of the truck or the amount of damage to the same in this action against the defendants, the alleged tort-feasors causing the damage to the truck, and the circumstances whereby such evidence was excluded show no harmful error.
(b) Furthermore, if the testimony had been admissible, the amount received, $1400, was greater than the amount sought by the plaintiff from the defendants, $1075, for damage to the truck, and as against the defendants, who complain of a limitation of the right of cross-examination, on account of the actions of the trial judge which caused counsel for the defendants to abandon any attempt to elicit such testimony from the plaintiff, the exclusion of such testimony could not have been harmful or prejudicial error.
3. In the absence of a timely motion for a mistrial or a proper objection a new trial will not be granted on account of questions propounded by the trial judge to a witness under examination, nor on account of remarks made in the presence of the jury not connected with the charge, as being intimations or expressions of opinion as to the evidence or as being prejudicial in other respects.
4. (a) It was not error to allow two witnesses who did not see the collision to give their opinion as to the point of impact between the two vehicles, based on what they saw and testified about at the scene of the collision which formed the basis for their opinions, under the circumstances as disclosed in this case.
(b) Where a witness qualified and testified as an expert it was not error for the trial judge to charge the jury in regard to expert testimony.
5. (a) Where it is apparent that a hypothetical question was based on the substance of certain testimony, no error is shown by the action of the trial judge in overruling an objection to the question as not following the testimony and in permitting an expert witness to answer the question.
(b) The remarks of the trial judge, while attempting to determine what testimony had been adduced to support the hypothetical question, cannot be considered as intimations or expressions of opinion as to the truth or weight of the evidence.
(c) Under the circumstances here shown, where there was an exchange of remarks between the trial judge and counsel in regard to what testimony had been adduced, there being a difference of opinion, this difference having arisen after objections to the asking of a hypothetical question, and where thereafter the trial judge cautioned counsel on both sides as to captious objections, nothing harmful or prejudicial requiring the grant of a mistrial is shown, and it was not error for the trial judge to refuse the grant of a mistrial on account of his remarks and actions.
6. No error is shown by the special ground of the motion for new trial in regard to the charge of the court on comparative negligence.
7. The verdict for the plaintiff for $5000 was authorized by the evidence.
8. The trial judge did not err in overruling the motion for a new trial.
Frank Stiles filed a petition in the City Court of Hall County, naming the Royal Crown Bottling Company, Incorporated, and Walter L. Bruce as defendants, seeking damages as the result of a collision on a public highway between a truck owned by him, which he was driving at the time, and a truck driven by Bruce for the bottling company. In his petition Stiles alleged, in substance, that on June 8, 1948, he was driving a GMC pickup truck in a northerly direction on U. S. Highway No. 129 about 2 1/2 miles north of Gainesville, Hall County, Georgia, on the right side of the highway at a speed of not more than 30 m.p.h., and that Bruce, as an agent and employee of the other defendant, was driving a Chevrolet truck loaded with soft drinks and bottles in a southerly direction, on the wrong side of the highway, that is, across the center line, at a speed in excess of the lawful rate, which collided with his truck, causing damage to the truck and personal injuries. Judgment was sought for $12,100, of which $10,000 was for personal injuries and $2,100 was for damage to the truck.
Bruce and the Royal Crown Bottling Company of Gainesville were served with the petition, and filed separate demurrers, and separate answers and cross-actions. Their demurrers were identical, and they demurred generally to the petition as not setting forth a cause of action, and specially to certain language contained therein as being vague, indefinite, or a mere conclusion of the pleader, the demurrers including motions to strike such language from the petition. In their answers and cross-actions each defendant denied liability, and alleged identical acts of negligence on the part of the plaintiff, to the effect that he was operating his truck at an excessive speed, with defective brakes, on the wrong side of the road, and damages were sought by Bruce for personal injuries, and by the bottling company for the reduction in market value of its truck.
The plaintiff thereafter amended his petition, substituting the correct name of the bottling company, Royal Crown Bottling Company of Gainesville, Georgia, and substituting more detailed allegations as to the manner of the collision, negligence of the defendants, and injuries suffered thereby. Negligence was alleged: '(a) In operating said Chevrolet truck, at said time and place, at a greater rate of speed than 55 miles per hour as provided by the laws of Georgia, which plaintiff charges is negligence per se. (b) In operating said Chevrolet truck, at said time and place, at a greater rate of speed than was reasonable and safe, taking into considerations the conditions then existing, including the width, grade, character, traffic and common use of such highway, which plaintiff also charges is negligence per se. (c) In failing to reduce the speed of said Chevrolet truck and to keep the same as far to the right of the highway as reasonably possible in rounding said curve in said highway, as provided by the laws of Georgia, which plaintiff charges is negligence per se. (d) In failing to turn said Chevrolet truck to the right, when meeting the G.M.C. truck in said highway, being operated by the plaintiff, approaching in an opposite direction, so as to give plaintiff one-half of the traveled highway and a fair opportunity to pass by without unnecessary interference, as provided by the laws of Georgia, which defendant charges is negligence per se. (f) In driving and operating said Chevrolet truck to his left of the center line of said highway, while meeting another motor vehicle in said highway.' In the amended petition judgment was sought for $11,075, the amount sought on account of damage to the truck having been reduced from $2,100 to $1,075.
The defendants demurred to the petition as amended for grounds thereof stating that the amendment to the petition added a new and distinct cause of action and a new and distinct party, that the original petition failed to set forth a cause of action and did not contain enough to amend by, and that certain language of the amended petition was vague and indefinite, or a mere conclusion of the pleader, and should be stricken. The trial judge overruled these demurrers, with the exception of three grounds. Two of these grounds were objections to the language used in two paragraphs of the petition, and these grounds were sustained, with leave for the plaintiff to amend. Ruling was reserved on the other ground, which was an ojbection to the language used in one paragraph of the petition. The plaintiff amended his petition within the time allowed, to meet the objections which were sustained, and in other particulars, including the objection on which ruling was reserved. The defendants then demurred to the language in one paragraph of the second amendment, in regard to spinal injuries, the plaintiff amended to meet this objection, and the demurrer was renewed. Thereafter the trial judge overruled the ground on which ruling was reserved, the two grounds which were originally sustained, and the renewed demurrer to the last amendment. The defendants filed exceptions pendente lite to the rulings on demurrer, and the case proceeded to trial before a jury.
There were stipulations to the effect that Bruce was an agent and employee of the bottling company acting within the scope of his employment at the time and place of the collision. There was evidence on behalf of the plintiff to the effect that he was driving carefully on his side of the road; that the defendant Bruce approached, driving the defendant bottling company's truck at an excessive rate of speed, estimates being as high as 65 m.p.h., and that this truck or a part of it was to the left of the center of the road when it collided with the truck driven by the plaintiff; and that the plaintiff's truck was damaged as alleged, and that the plaintiff was at least partially disabled, on account of a ruptured intervertebral disc, had other injuries, and incurred medical expenses, and still suffers pain on account of his injuries. The evidence on behalf of the defendants as to their not being liable was to the effect that Bruce was driving the bottling company's truck on the right side of the road in a careful manner at a lawful rate of speed, and that the...
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