Ryder Truck Rental, Inc. v. Gianotos
| Decision Date | 08 February 1966 |
| Docket Number | No. 41681,No. 1,41681,1 |
| Citation | 113 Ga.App. 81,147 S.E.2d 448 |
| Parties | RYDER TRUCK RENTAL, INC., et al. v. Mary C. GIANOTOS |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1, 2. The motions to dismiss the appeal are denied, one on the ground that appeal was not the method by which to bring the case to this court, and the other, that exceptions to the court's charges and failure to charge did not show foundations for such exceptions provided in the Appellate Practice Act of 1965.
3. The erroneous misstatement of a contention of a party is error requiring the grant of a new trial where the error is not corrected and attention called to the erroneous charge.
4. The second exception to the charge contains matter which will not likely be present in the charge on another trial so the exception will not be passed on.
5. The third and fourth exceptions to the charge on the avoidance rule are meritorious and the errors require the grant of a new trial.
6. The failure to charge the measure of damages to personal property was error requiring the grant of a new trial in this case.
7. The court did not err in refusing to admit in evidence the report of the collision made by a state trooper.
Ryder Truck Rental, Inc., on April 5, 1963, instituted an action against Mary Craven Gianotos to recover damages to its 1961 Ford Diesel tractor and Fruehauf trailer, which damages were alleged to have been proximately caused by the negligence of the above named defendant in the operation of her 1961 Buick LeSabre automobile on November 29, 1962. Mary Craven Gianotos instituted an action against Diamond Brothers Company of Georgia, Inc., Dimension Lumber Company, Inc., and Ryder Truck Rental, Inc., on May 6, 1963, to recover damages to herself, consisting of personal injuries and damages to her automobile. On May 7, 1963, Miss Gianotos filed her answer in the action first mentioned above and cross action for damages alleged to have been caused by the negligence of the three defendants named in her action filed on May 6, 1963. The negligence charged by Miss Gianotos in her action and in her answer and cross action are about the same, and the negligence charged against her in the action filed by Ryder Truck Rental, Inc., and in the answer of the three corporate defendants to the action filed by Miss Gianotos is about the same. The cases were consolidated and tried, resulting in a verdict and judgment against all three corporate defendants in Miss Gianotos' action. Their motion for a new trial was overruled on September 7, 1965, and they appeal from that judgment.
Fulcher, Fulcher, Hagler, Harper & Reed, E. D. Fulcher, Augusta, Spivey & Carlton, Milton A. Carlton, Swainsboro, for appellant.
Williams, Smith & Shepherd, Sidney B. Shepherd, Swainsboro, for appellee.
1. The appeal is not subject to dismissal on the ground that it should have been brought here by writ of error and not appeal. Bills of exceptions were abolished as such as of August 1, 1965, and the appeal otherwise than by a bill of exceptions is appropriate. The motion to dismiss the appeal on this ground is denied.
2. The motion to dismiss the appeal on the ground that the only exceptions in the appeal are based on exceptions to the court's charges and failure to charge and that no proper foundation was laid for such exceptions under the Appellate Practice Act of 1965 is without merit because this case was tried before August 1, 1965, when said Act went into effect. At the time this case was tried there was no provision of law requiring a foundation to be laid for the exception to a charge or refusal to charge. The motion to dismiss the appeal on the second ground is denied. The motion is also denied for the reason that there is one enumerated error which is not based on a charge or a failure to charge.
3. The first exception is to the following excerpt from the charge of the court: 'Now, they further allege that the defendant in this case was free from fault as a result of the negligence of agent of the said plaintiff aforesaid, and her car was damaged and she received personal injuries and herein brings cross action to such injuries.' The exception is that the court misstated the contentions of the three corporate parties against whom verdict and judgment were rendered. This exception is meritorious. The three corporate parties in their answer to the action against them contended to the contrary and so did Ryder Truck Rental, Inc., in the action filed by it. The consolidation of these cases and their trial under consolidation made a jury charge exceedingly difficult. However, that may be, and as difficult as it was, this court cannot administer settled law on such a basis. The court in several places confused the parties and confused and misstated contentions but never did he call the jury's attention to the incorrect statements of the parties' contentions and correct them. All he did was to state contentions incorrectly and later state them correctly without so stating. Some cases holding that the erroneous statements by a judge of the contentions of a party require the granting of a new trial are as follows: Farr v. Collins, 109 Ga.App. 37, 135 S.E.2d 65; Hightower v. Ansley, 126 Ga. 8(6), 54 S.E. 939, 7 Ann.Cas. 927; Atlantic C.L.R. Co. v. Coxwell, 93 Ga.App. 159, 91 S.E.2d 135; Turner v. Tomberlin-Sheetz Architects, Inc., 112 Ga.App. 661, 145 S.E.2d 743 and cit.
4. The second exception to the charge is that the court charged the jury that Miss Gianotos' injuries were due to the negligence of the agent of the three corporate parties rather than stating to them that such was the contention of Miss Gianotos. This court cannot be sure, as the record appears, whether this exception is good or not. We are sure that the judge intended to state the matter as a contention. He may have been reading from a pleading of Miss Gianotos. This is indicated. As the case must be tried again we leave this matter to the trial judge as we are confident that the confusion will not recur.
5. The third and fourth exceptions are that the court erred in giving the following excerpts: (1) 'Now if either party by the exercise of ordinary care could have avoided the consequences to himself caused by the negligence of the other, if such there was, when such negligence became apparent to the party or by the exercise of ordinary care on their part they could have avoided or become aware of it, then that party could not recover'; (2) 'If either party by the exercise of ordinary care could have avoided the consequences to himself or herself caused by the negligence of the other when that...
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Jim Walter Corp. v. Ward
...erred in failing to give the jury any instructions whatsoever regarding the measure of actual damages citing Ryder Truck Rental, Inc. v. Gianotos, 113 Ga.App. 81, 85, 147 S.E.2d 448, and that even if the defendants requested no such charge it was substantial error, citing City of Macon v. D......
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