Scholle Atlanta Corp. v. Nealy

• Decision Date: 19 November 1964
• Docket Number: No. 40739,No. 3,40739,3
• Citation: 140 S.E.2d 88,110 Ga.App. 775
• Parties: SCHOLLE ATLANTA CORPORATION v. Nathaniel NEALY
• Court: Georgia Court of Appeals

Page 88

140 S.E.2d 88

110 Ga.App. 775

SCHOLLE ATLANTA CORPORATION v. Nathaniel NEALY.

No. 40739.

Court of Appeals of Georgia, Division No. 3.

Nov. 19, 1964.

Rehearing Denied Dec. 8, 1964.

Syllabus by the Court

1. The portion of the charge objected to is not subject to the attack that it unduly stressed the contentions of the plaintiff and was argumentative.

2. (a) Although the trial court erred in instructing the jury on irrelevant matters, the inappropriate portion of the charge was not harmful and could not have misled the jury. This error does not require a reversal.

(b) Under the charge as given, the jury could not have returned a verdict against the defendant without finding that the negligence of the defendant was a proximate cause of the plaintiff's injuries. That finding precluded the jury from any possibility of determining that the host driver's negligence was the sole proximate cause of the plaintiff's injuries.

Nathaniel Nealy sued Scholle Atlanta Corporation for damages for personal injuries that he sustained in an automobile collision involving a vehicle driven by the defendant's agent and a vehicle in which the plaintiff was a guest passenger. In its answer the defendant denied the plaintiff's allegations of negligence and alleged that the sole proximate cause of the collision was the negligence of Willie Rogers, driver of the automobile in which the plaintiff was riding. While on the trial of the case there was some evidence to support this contention, the evidence was sharply conflicting. The jury returned a verdict for the plaintiff, and a judgment based on the verdict was entered by the trial judge. The defendant excepts to the judgment of the trial court denying defendant's motion for new trial.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Richard A. Newton, George B. Haley, Jr., Atlanta, for plaintiff in error.

George B. Hooks, Atlanta, for defendant in error.

BELL, Presiding Judge.

1. Ground 6 of the motion for new trial assigns error on certain portions of the court's instructions to the jury on the ground that the charge was argumentative in that it unduly stressed the contentions of the plaintiff, and plaintiff's contentions were charged with such repetition and frequency as to convey to the jury the impression that the court was of the opinion that the plaintiff should prevail. 'If as here, the pleadings of the plaintiff are fuller than those of the defendant, the natural consequence is that the court may devote more time in stating the pleadings and contentions of the plaintiff as set forth in the petition than in stating those of the defendant as set forth in his answer. Fite v. McEntyre, 77 Ga.App. 585, 596, 49 S.E.2d 159; Scott v. Smalling, 90 Ga.App. 292, 82 S.E.2d 712. 'The mere fact that the contentions of the plaintiff were stated at more length than those of the defendant did not indicate that undue stress was laid upon, or undue prominence given to, the former.' Phinizy v. Bush, 135 Ga. 678(3), 70 S.E. 243.' Miller v. Coleman, 213 Ga. 125(2), 97 S.E.2d 313, 316. 'A repetition of a proposition in different instructions may be of such a character as to be in the nature of an argument. However, an instruction is not argumentative merely because it contains unnecessary repetition.' Laney v. Barr, 61 Ga.App. 145, 147, 6 S.E.2d 99, 101; Richter v. Atlantic Co., 65 Ga.App. 605, 610, 16 S.E.2d 259. Here the court merely stated and restated the contentions of the plaintiff, relating those contentions to other parts of the charge, and he did not state 'reasoning and deductions and inferences shown by the evidence in support of the contentions.' Sheppard v. Broome, 214 Ga. 659, 663(11), 107 S.E.2d 219, 224.

There is no merit in ground 6 of the motion for new trial.

2. Ground 4 of the motion for new trial assigns as error a portion of the trial judge's instructions to the jury in which he charged: '[T]he degree of care required by the law to have been exercised by Rogers [the host driver] in relation to the plaintiff Nealy was that of slight care or diligence. Slight diligence is that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances, and the absence of such care is termed in law gross negligence. * * * [I]f you find that the operator of the automobile in which the plaintiff was riding was negligent and that such negligence on the part of the operator of the automobile in which the plaintiff was riding was the proximate cause of any injury, or injuries, that the plaintiff may have sustained, then your verdict in this case would be in favor of the defendant.'

The defendant contends that this charge was erroneous because (a) it 'defined negligence on the part of plaintiff's host driver, which if the sole proximate cause of plaintiff's injuries would bar recovery, as being a violation of a duty to exercise only slight care or diligence' and (b) it 'injected matters into the case for the jury's consideration which were irrelevant * * * in that to charge that Willie Rogers had a duty to exercise only slight care or diligence would be relevant only in a suit in which Willie Rogers was a party defendant.'

In cases of this nature the negligence, if any, of the host driver is not imputable to the guest passenger. East Tennessee V. & G. Ry. Co. v. Markens, 88 Ga. 60(2), 13 S.E. 855, 14 L.R.A. 281; Goldstein v. Gee, 76 Ga.App. 637(2), 46 S.E.2d 763; Beadles v. Bowen, 106 Ga.App. 34(4), 126 S.E.2d 254. However, the plaintiff is not entitled to recover against the defendant if the host driver's negligence of any degree, either gross, ordinary, or slight, was the sole proximate cause of plaintiff's injuries, for this necessarily excludes the defendant's negligence as a proximate cause contributing to the injuries. See: Central of Georgia Ry. Co. v. Reid, 23 Ga.App. 694, 696, 99 S.E. 235; Brooks v. Carver, 55 Ga.App. 362(2), 190 S.E. 389; Mishoe v. Davis, 64 Ga.App. 700(2), 14 S.E.2d 187; Lewis v. Williams, 78 Ga.App. 494(4), 51 S.E.2d 532. The issue of the host driver's negligence as constituting the sole proximate cause of the plaintiff's injuries having been injected into this case by the defensive pleadings and the evidence, it was pertinent for the trial judge to charge the jury on this subject. Smith v. Payne, 85 Ga.App. 693(2), 70 S.E.2d 163. However, as Willie Rogers was not a party defendant, the standard of care owed...