Slaughter v. Linder

• Decision Date: 18 June 1970
• Docket Number: No. 45420,No. 2,45420,2
• Citation: 176 S.E.2d 450,122 Ga.App. 144
• Parties: Nellie B. SLAUGHTER v. Willie C. LINDER
• Court: Georgia Court of Appeals

Page 450

176 S.E.2d 450

122 Ga.App. 144

Nellie B. SLAUGHTER v. Willie C. LINDER.

No. 45420.

Court of Appeals of Georgia, Division No. 2.

June 18, 1970.

Rehearing Denied July 6, 1970.

Syllabus by the Court

1. The general grounds of the motion for new trial are without merit.

2. (a) Requests to charge must be timely made in writing; it is not error to deny an oral request.

(b) A request must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper. If the request is directed to the whole of a Code section and a portion thereof is inapt or inapplicable, the request should be denied.

(c) A contention presented in the brief, but not enumerated as error, cannot be considered.

3. There was no error in charging the provisions of Code Ann. § 68-1650(c) relative to the duty of a motorist to observe a duly posted yield sign and await the clearance of traffic in or so near the intersection as to create an immediate hazard, even though it may appear that the collision between plaintiff's vehicle and that of the defendant occurred a short distance from, rather than in, the intersection.

4. There was no error in failing to charge the provisions of a portion of a Code section, no proper request having been made therefor, particularly when the charge as given substantially covered the desired instruction and was better adjusted to the evidence.

Nellie B. Slaughter brought suit against Willie C. Linder seeking damages for injuries which she allegedly sustained when defendant's automobile struck the rear of her car after she had entered a four-lane highway, and was proceeding from 35 to 40 miles per hour in a southerly direction in the western lane. Defendant was charged with negligence in the operation of his vehicle while under the influence of intoxicants in violation of Code § 68-1625; in failing to drive at a speed that was reasonable and safe in violation of Code Ann. § 68-1626; in failing to keep a proper lookout; in failing to bring his vehicle to a stop before colliding with that of plaintiff; and in failing to show a due and proper regard for the safety of others who were using the highway, including plaintiff.

Defendant, denying all allegations of negligence, pleaded that plaintiff's injury and damage resulted from her own negligence in failing to yield the right of way upon entering the four-lane highway as she was required to do by posted sign and by the provisions of law, and by counterclaim sought the recovery of damages sustained to his vehicle and for its loss of use while under repair.

A verdict was returned by the jury in favor of the defendant for the damages sought. From the overruling of her motion for new trial, as amended, plaintiff appeals, enumerating error upon the overruling of the general grounds of her motion; the failure of the court to give her oral request to charge Code Ann. § 68-1625, pertaining to the operation of a motor vehicle on the highway while under the influence of intoxicants; the failure, without request, to charge as to Code Ann. § 68-1626(c); and upon charging relative to the duty imposed by law upon operators of motor vehicles when approaching a yield right of way sign duly posted.

Billy E. Moore, Columbus, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Richard Y. Bradley, Columbus, for appellee.

EBERHARDT, Judge.

1. The evidence was conflicting, and a verdict for either party was authorized, though not demanded. 'It is the duty of the court to construe the evidence most strongly in support of a verdict which has been approved by the trial judge.' Associated Mutuals, Inc. v. Pope Lumber Co., 200 Ga. 487, 496, 37 S.E.2d 393, 398. The general grounds of the motion for new trial are without merit.

2. Appellant relies heavily upon her contention that the court committed error in failing to charge, 'as requested by plaintiff and as pleaded in plaintiff's complaint, as to the principles of law contained in Code Ann. § 68-1625 pertaining to the operation of a motor vehicle (while) under the influence of intoxicants.'

(a) The transcript discloses that at the close of the charge counsel for plaintiff excepted to the failure of the court to give an oral request to charge on Code Ann. § 68-1625. The enumeration of errors complains of the court's failure to charge in this respect 'as requested by plaintiff.' There is no written request in the record, and we must conclude that there was none. Requests to charge must be timely and properly submitted in writing. Code Ann. § 70-207(b); Gilmore v. State, 117 Ga.App. 67(1), 159 S.E.2d 474. 'It is never error to deny an oral request to charge.' Kendrick v. Kendrick, 218 Ga. 460(2), 128 S.E.2d 496. This requirement extends to pertinent sections of the Code which a party may desire to have included in the charge. Suber v. Black, 168 Ga. 439(4), 148 S.E. 81. And see Ernest L. Miller Co. v. Gauntt, 93 Ga.App. 178(2), 91 S.E.2d 104.

(b) If the request had been submitted in writing we should hold that denial of it was proper. 'A request to charge should in itself be correct and even perfect; otherwise the refusal to give it will not be cause for a new trial. Etheridge v. Hobbs, 77 Ga. 531, 3 S.E. 251; Macon, Dublin etc. R. Co. v. Joyner, 129 Ga. 683, 688, 59 S.E. 902, 905. The written requests must be legal, apt, and precisely adjusted to some principle involved in the case. Sikes v. Seckinger, 173 Ga. 673, 160 S.E. 911; Barrett v. Barrett, 177 Ga. 190, 196, 170 S.E. 70.' Dozier v. State, 119 Ga.App. 531(5), 167 S.E.2d 670, 673.

The request was directed to the whole of Code Ann. § 68-1625, which contains detailed provisions relative to the obtaining of blood tests for the alcoholic content of the blood of a driver who is suspected of operating a vehicle on the highway while under the influence of intoxicants. While an investigation officer who was at the scene of the accident testified that he smelled an alcoholic odor on the defendant's breath and asked him whether he had been drinking, and that defendant replied that over a period of several hours he had consumed two or three drinks, and that the defendant was thereupon charged with driving while intoxicated and carried to a hospital where a blood sample was obtained and the test was made, after which the charge was dropped, the officer was not permitted to state what the result had been-plaintiff objecting. ¹ There is, therefore, no evidence in the record which would justify a charge of § 68-1625(b)(1), (2), (3), (4), (5), or (6). There was no evidence that the defendant was under the influence of any drug, and thus § 68-1625(c) was wholly inappropriate for the charge. Since thw whole of $68-1625 was not pertinent and appropriate, denial of the request was proper. 'Unless a request to charge is all legal and pertinent, the court is not bound to give any part of it.' Gardner v. Granniss, 57 Ga. 539(15). And see Denton v. Etheridge, 73 Ga.App. 221, 229, 36 S.E.2d 365. The request, as made, was not adjusted to the evidence, and a denial of it was proper. Bridges v. Donalson, 165 Ga. 228(5), 140 S.E. 497. See particularly Davis v. Guffey, 196 Ga. 816, 817(1), 27 S.E.2d 689, and Woods v. State, 102 Ga.App. 229, 115 S.E.2d 595.

(c) In this brief counsel for appellant urges that a charge of the portion of the Code section prohibiting the driving of a vehicle on the highway while under the influence of intoxicants and making it a criminal offense to do so should have been given because the pleadings and the evidence on this matter made it one of the substantial issues in the case and that it was error to fail to charge thereon, even without a request to do so, citing Pryor v. Coggin, 17 Ga. 444; Phenix Insurance Co. v. Hart, 112 Ga. 765(1), 38 S.E. 67; Mobley v. Merchants' & Planters' Bank, 157 Ga. 658(1), 122 S.E. 233; Investors' Syndicate v. Thompson, 172 Ga. 203(2b), 159 S.E. 20; Williford v. Swint, 183 Ga. 375(4), 188 S.E. 685; Jackson v. Matlock, 87 Ga.App. 593(1), 74 S.E.2d 667; Smith v. Harrison, 93 Ga.App. 576(1), 89 S.E.2d 273; and Beadles v. Smith, 106 Ga.App. 31(4), 126 S.E.2d 250.

The only enumeration of error relative to this matter is that which deals with the 'failure of the court of charge the jury, as requested, * * * as to the principles of law contained in Code § 68-1625, pertaining to the operation of a motor vehicle under the influence of intoxicants.' We have dealt with this enumeration fully. There is no enumeration on the failure of the court to give a charge upon an issue made by the evidence and the pleadings, without a request to do so. Consequently, we do not have that question before us for decision. Although presented in the brief, 'any error not enumerated shall be disregarded.' Windsor v. Southeastern Adjusters, Inc., 221 Ga. 329, 144 S.E.2d 739. 'Although in their brief the defendants insist that the trial judge erred in overruling many of their numerous special demurrers, no ground concerning this was included in the enumeration of errors. Hence, we can not consider such ruling.' Cross v. Miller, 221 Ga. 579, 582(2), 146 S.E.2d 279, 282. 'Appellant did argue, but did not set forth in his enumeration, that the finding of the court, which heard the case without the intervention of a jury, was not authorized by the evidence. Under Sec. 14 of the Appellate...