Stanfield v. Smith
| Decision Date | 26 November 1979 |
| Docket Number | No. 58152,58152 |
| Citation | 262 S.E.2d 216,152 Ga.App. 22 |
| Parties | STANFIELD v. SMITH et al. |
| Court | Georgia Court of Appeals |
Richard D. Phillips, Ludowici, for appellant.
James M. Thomas, Savannah, M. Francis Stubbs, Reidsville, for appellees.
This is a wrongful death action initiated by the appellant to recover damages for the death of her 17-year-old son, who was killed when a pick-up truck he was driving collided with a truck driven by appellee Curtis Smith and owned by appellee Costal Boilers, Inc. The evidence at trial was very much in conflict. The appellant contended that her son was hit from the rear, while the appellees contended that the collision was head-on. The jury returned a verdict for the appellees, and this appeal followed from the denial of the appellant's motion for new trial. Held :
1. The court did not err in charging the jury on the theory of accident. Although we cannot agree with the appellees that the issue of accident was set forth in the pleadings (the appellees consistently alleged in their amended answer that the collision resulted from the decedent's negligence), there was some evidence at trial from which the jury could have concluded that neither party was at fault. " Cobb v. Big Apple &c., Inc., 106 Ga.App. 790, 792, 128 S.E.2d 536, 538 (1962). The jury in this case heard testimony to the effect that the sun was shining over appellee Smith's shoulder at the time of the collision and that the decedent was traveling in the opposite direction. Therefore, they may have concluded that the sun was shining directly into the decedent's eyes and that this caused a temporary blindness which led to the collision without fault on his part. Although such a conclusion was certainly not demanded by the evidence, we cannot say as a matter of law that it was unauthorized.
2. It is contended that the court committed reversible error in charging the jury that the appellant could not recover "unless negligence is proved against the defendants As alleged in the petition." (Emphasis supplied.) There was evidence at trial of several acts of negligence by the appellee which had not been alleged in the complaint. Therefore, any attempt to limit the jury's consideration to the specific allegations raised in the complaint would have been improper. See generally Johnson v. Myers, 118 Ga.App. 773, 776, 165 S.E.2d 739 (1968); O'Quinn v. James, 127 Ga.App. 94, 95(1), 192 S.E.2d 507 (1972). However, we do not believe that the charge could reasonably have been interpreted in such a manner when considered in its entirety. In fact, most of the additional acts of negligence not raised in the complaint but placed in issue at trial were the subject of specific individual jury instructions. This enumeration of error is without merit.
3. We find no harm in the court's refusal to charge the provisions of Code Ann. § 68A-804, which gives local governments the authority to reduce the state speed on state highways below the normal 55 miles per hour where a determination is made that conditions warrant such a reduction. It is highly unlikely either that a reasonable juror would question that local authorities have such power or that the issue contributed to the verdict one way or the other.
4. The fourth enumeration of error is deemed abandoned for failure to provide argument or citation of authority in support thereof. See Rule 18(c)(2) (Code Ann. § 24-3618(c)(2)).
5. The final enumeration of error is directed towards the exclusion of a deposition which the appellant offered as evidence for the purpose of establishing the mechanical condition of the vehicle which the decedent was driving. The deponent was the owner of the vehicle. Since being deposed he had moved; however, there was no competent evidence showing where he resided at the time of trial or indicating that the appellant had made any effort to locate him.
Code Ann. § 81A-132(a)(3) provides for the use of a deposition as evidence at trial under certain specified circumstances, all of which deal with the witness's unavailability to testify. Since the appellant failed to establish where the witness resided and failed to show that any effort had been made to locate him, the trial court did not err in finding that his unavailability had not been established and in refusing to admit the deposition under the above code section. See Building Assoc., Inc. v. Crider, 141 Ga.App. 825(6), 234 S.E.2d 666 (1977).
Judgment affirmed.
In this wrongful death case I concur fully with the majority opinion finding no error in its consideration of the alleged errors in Divisions 2, 3, 4 and 5. However, I cannot agree that the trial court was authorized to charge the jury on the theory of accident.
Plaintiff's decedent was naturally unavailable to testify as to how the collision of the motor vehicles occurred. The petition alleged that the collision occurred when the defendant driver of a tractor-trailer (operated by the driver in the course of the owner's business) approached the vehicle (pickup) driven by the decedent "at a high rate of speed and struck said pickup in the rear." The defendants denied that the collision occurred in this manner but averred that the decedent was guilty of negligence in entering a highway without yielding the right-of-way to all vehicles approaching on the roadway. By amendment defendants contend the collision was unavoidable "insofar as the defendants are concerned" as the defendant driver could not by the exercise of ordinary care avoid the negligent acts of the decedent who created a perilous situation and proximately caused the collision in question, and "insofar as the defendants are concerned, the collision in question was an unavoidable accident." During the trial the defendant driver testified that as he was driving north on a state highway approaching the scene where the wreck occurred, he observed the pickup truck leaving a house on the right side of the highway "coming towards the highway," and "it was about half way 'twixt the house and the highway, when I first seen it moving this a way," that he pulled his airhorn, "stomped my brakes," and by that time "he was out on the road, coming down the road on my side, on the right hand side of the road." That he did pull to the left to try to miss him but the collision just happened so quick he did not have time to do anything further. He further testified that the day was not cloudy but a clear, bright and sunny day and the collision occurred about 6 o'clock. To a question as to where the sun was shining, that is "(o)ver your shoulder," his answer was: He further testified that at no time when he sounded his horn did the pickup truck make any effort to stop its movement. Other testimony discloses that the road into the state highway was an unpaved public roadway.
At no time have the defendants claimed this was an accident, that is, that neither party was negligent. Defendants clearly contend they were not negligent, although they do claim the collision was unavoidable "insofar as defendants are concerned."
The proper use of the term "accident" excludes negligence, that is, without fault or carelessness or want of proper circumspection of the person affected or which could not have been avoided by the use of that kind and degree of care necessary to the exigency and in the circumstances in which the person was placed. See Code § 102-103. Richter v. Atlantic Co., 65 Ga.App. 605, 608, 16 S.E.2d 259; Morrow v. Southeastern Stages Inc., 68 Ga.App. 142, 146, 22 S.E.2d 336; Brewer v. Gittings, 102 Ga.App. 367, 376, 116 S.E.2d 500; Cartey v. Smith, ...
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