Smoky Mountain Stages Inc v. Wright

• Decision Date: 14 March 1940
• Docket Number: No. 27966.,27966.
• Citation: 8 S.E.2d 453
• Parties: SMOKY MOUNTAIN STAGES, Inc. v. WRIGHT.
• Court: Georgia Court of Appeals

8 S.E.2d 453

SMOKY MOUNTAIN STAGES, Inc.

v.WRIGHT.

No. 27966.

Court of Appeals of Georgia, Division No. 1.

March 14, 1940.

Syllabus by the Court.

The evidence authorized the verdict, and none of the grounds of the motion for new trial shows reversible error.

Error from Superior Court, Cobb County; J. H. Hawkins, Judge.

Suit by Miss Lilla F. Wright against the Smoky Mountain Stages, Incorporated, for injuries allegedly sustained by plaintiff when defendant's bus, upon which plaintiff was riding as a passenger, went off the road and collided with a bank. To review a judgment for plaintiff, the defendant brings error.

Affirmed.

J. G. Roberts, of Marietta, and Bryan, Middlebrooks & Carter and John A. Duna-way, all of Atlanta, for plaintiff in error.

Morris & Welsh, of Marietta, for defendant in error.

MacINTYRE, Judge.

Miss Lilla F. Wright filed suit against Smoky Mountain Stages, Incorporated, claiming that she received certain injuries when a bus of the defendant, upon which she was riding as a passenger, went off the road and collided with a bank just north of Marietta, Georgia. The negligence charged was that the driver of the bus was rounding the curve, going down a steep descent, and approaching a bridge at the rate of forty to forty-five miles an hour, and negligently failed to reduce his speed, which was in excess of the state law; and that the driver of the bus recklessly and negligently failed to reduce the speed of the bus at the time and place and negligently and recklessly drove it to the left off of said highway and into a ditch and embankment. In its answer, the defendant denied that the plaintiff was injured and made a general denial of the allegations of the paragraphs of the petition that the defendant's negligence was the cause of the injury. The jury returned a verdict in favor of the plaintiff, and to the overrul ing of its motion for new trial as amended, the defendant excepted.

1. One of the exceptions in the motion for new trial is based on the ground of improper argument by counsel for plaintiff. Realizing that "The state, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence" (New York Central Railroad Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 303, 73 L.Ed. 706; Georgia Power Co. v. Puckett, 181 Ga. 386, 392, 182 S.E. 384), and that "Although it is the duty of the trial judge, whether so requested or not, to check improper remarks of counsel to the jury, and to seek, by proper instructions to the jury, to remove any prejudicial effect they may be calculated to have against the opposite party, " yet, " 'a verdict will not be set aside because of such remarks, or because of any omission of the judge to perform his duty in the matter, unless objection be made at the trial. A party will not be permitted to sit by and allow such conduct to proceed without objection, and without calling the attention of the court to it, and, after verdict take advantage of it as ground for new trial. It is as much his duty to object to improper argument as it is to object to improper evidence, and, in the former case as well as in the latter, he permits it without objection, he cannot demand a new trial on the ground that the jury may have been affected by it.'" (Italics ours) Georgia Power Company v. Puckett, 181 Ga. 386, 394, 182 S.E. 384, 389.

This court, wishing to get a definite ruling on what was necessary in order to make the improper argument to the jury made by attorney of one of the parties as a basis of review, certified the question to the Supreme Court and that court, in the case of Brooks v. State, 183 Ga. 466, 468, 188 S.E. 711, 712, 108 A.L.R. 752, clearly and definitely answered that question thusly: "When an improper argument is made, the adversary must act, if redress is desired; if not, the incident is closed. The adversary may (1) waive by silence; (2) he may request a rebuke by the court; (3) he may request instructions to the jury either at that moment or as a part of the general instructions; or (4) he may move for a mistrial. Possibly other motions maybe made or rulings invoked." No objection being made to such argument, there was no ruling of the trial court invoked which could be made a proper basis for review by this court. This contention is not meritorious.

It is further contended in this exception that the verdict of $2,850 was excessive. "As Judges, we are not authorized to substitute our conjectures or apprehensions for the determination of that body on whom the law has devolved the duty of deciding, duly weighing all the circumstances of the case. * * * Judges should be very cautious, therefore, how they overthrow verdicts given by twelve men on their oaths, on the ground of excessive damages, upon a matter left so entirely to their discretion, especially where the presiding Judge before whom the cause was tried, and who is presumed to have been familiar with all the facts, has refused to interfere. For this Court to order a re-hearing, under such circumstances, it must be made manifest by the proof, that the damages were 'flagrantly outrageous and extravagant.' " Lang v. Hopkins, 10 Ga. 37, 46; Realty Bond & Mortgage Company v. Harley, 19 Ga.App. 186, 188, 91 S.E. 254. The presumption being that jurors are impartial and understood the case, we think it more reasonable in this case that their finding was based on the evidence, considered impartially in connection with the charge, rather than on bias and prejudices.

2. We do not think it is a correct statement of the rule, as contended by the defendant, that it is reversible error, in civil cases, to fail to charge, whether requested or not, on a material and vital point and theory of defense involved by the evidence alone. On the contrary, the issue must be made both in the pleading and the evidence, in order for it to be reversible error for the judge to fail to charge thereon. Georgia Power Company v. Puckett, supra, quoting from New York Central Railroad Co. v. Johnson, supra; Shippen v. Thompson, 45 Ga.App. 736, 741, 166 S.E. 41.

[7, 8] 3. Another ground of the motion for new trial asserts...