Thomas v. Barnett
| Decision Date | 12 April 1963 |
| Docket Number | No. 39887,No. 3,39887,3 |
| Citation | 131 S.E.2d 818,107 Ga.App. 717 |
| Parties | Roy L. THOMAS, Jr., et al. v. Robert G. BARNETT, by next friend, et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The petition was not subject to general demurrer.
2. The evidence adduced on the trial was sufficient to authorize the jury to find that the defendant Thomas, Jr., was guilty of some of the acts of negligence charged, that such negligence was gross, and that it was a contributing proximate cause of the plaintiff's injuries and damages.
3. Under the authority of previous decisions of this court, the charge complained of in special grounds 1, 2 and 3 of the motion, which submitted to the jury an issue as to damages for the minor plaintiff's loss of earning capacity, was not erroneous even though there was no evidence from which the jury could have computed a pecuniary value to the plaintiff for such loss.
4. Argument by counsel on recovery for loss of earnings, or suggesting an amount to be considered in awarding damages for loss of earning capacity, was improper in the absence of supporting evidence.
5. An instruction containing a misstatement that defendant denied that the negligence of the codefendants was cause of plaintiff's injuries was error.
6. Even though a request to charge may be abstractly correct it should not be given if, as applied to the facts of the case then on trial, it is argumentative and tends to unduly stress the contentions of one side over the other.
7. The court is not required, in the absence of a timely written request therefor, to instruct the jury as to issues made by the evidence alone.
8. Where the plaintiff calls an adverse party to the stand for cross examination whether his counsel may examine him at that time lies within the discretion of the trial judge. No absolute right to such examination exists.
Smith, Kilpatrick, Cody, Rogus & McClatchey, Barry Phillips, Atlanta, Telford, Wayne & Smith, Jeff C. Wayne, Gainesville, for plaintiffs in error.
Burt DeRieux, Greene, Neely, Buckley & DeRieux, A. Paul Cadenhead, Nall, Miller, Cadenhead & Dennis, Thomas A. Rice, Atlanta, for defendants in error.
This was a suit for damages for personal injuries brought by Robert Gerald Barnett, a minor, by and through Comer L. Barnett, as next friend, against Mrs. Ellorie V. Smith, A. C. Smith, Roy Lee Thomas, Jr., and Roy Lee Thomas, Sr. After the defendants had filed their answers and demurrers and the demurrers had been overruled, the case came on for trial before the judge and a jury in the Superior Court of Forsyth County. At the conclusion of the evidence the jury returned a verdict against both defendants in the amount of $70,000. The defendants Thomas made a motion for a new trial on the general grounds, which was amended by the addition of 17 special grounds, and also made a motion for a judgment notwithstanding the verdict, and these motions were overruled by the trial court. The assignment of error here is on the judgment overruling the demurres and on the judgments overruling the motion for a new trial and a motion for judgment notwithstanding the verdict. For the report of the companion case, the appeal of the codefendants Smith, see Smith v. Barnett, Ga.App., 132 S.E.2d 139.
The petition alleged and the evidence adduced on the trial of the case tended to show substantially the following material facts. Robert Gerald Barnett, a minor 16 years of age at the time, was on July 20, 1960, riding as a gratuitous guest passenger in a Ford Falcon automobile, driven by Roy Lee Thomas, Jr., and owned by Roy Lee Thomas, Sr., and maintained by him as a family purpose automobile. This automobile was being driven by Roy Lee Thomas, Jr., in a northerly direction along U. S. Highway 19 approximately eight and one-half miles north of the city limits of Cumming, in Forsyth County, Georgia. At the time, the said Ford Falcon automobile was approaching an unpaved road intersecting from the east of said Highway 19. The said unpaved road intersected U. S. Highway 19 at a point just beyond the crest of a steep hill, with relation to the direction in which the Falcon was traveling. At the same time the defendant Ellorie V. Smith was driving a Ford station wagon owned by the defendant A. C. Smith and maintained by him as a family purpose automobile approaching the intersection from the north. As the automobile driven by defendant Thomas approached the intersection the visibility of the driver ahead was restricted to not more than 250 feet, due to the sharp curvature of the road, and he approached the intersection at a speed between 50 and 60 miles per hour. The defendant Ellorie V. Smith turned her station wagon across the road headed into the intersecting unpaved road immediately in front of the automobile driven by Thomas, Jr., who applied his brakes, lost control of his automobile, causing it to turn sideways across the road and to skid into the front end of Mrs. Smith's automobile, severely damaging the Falcon and inflicting the injuries on the plaintiff for which he sued. The defendant Ellorie V. Smith was alleged to have been negligent in not operating her automobile on the right half of the highway, in failing to pass the Ford Falcon automobile to the right, in making a left turn across the lane of traffic when the Ford Falcon was approaching the intersection from the opposite direction, in turning her automobile into the left half of the highway in such a manner as to approach the intersection in the left half of the highway, and in failing to indicate by a proper signal her intention to make a turn, all of the aforesaid actions alleged to have been in violation of specified Code sections and to have constituted negligence per se. She was further alleged to have been negligent in failing to turn her automobile back into the right lane of the highway after observing the approach of the defendant Thomas' automobile, in failing to keep a proper lookout for other vehicles on the highway, in failing to anticipate the approach of the vehicle driven by the defendant Thomas, and in failing to ascertain that the way was clear before attempting a left turn. The defendant, Roy Lee Thomas, Jr., was alleged to have been negligent in operating his automobile at a speed in excess of the legal limit and in operating it in a manner which was not reasonable and prudent, taking into consideration the surrounding circumstances, in failing to reduce his speed upon approaching a curve, the crest of a hill and an intersection, and in failing to operate his vehicle at such a speed as to be able to control its movement, all of the aforesaid acts being alleged to have been in violation of specified Code sections and to have constituted negligence per se. It was further alleged that the defendant, Roy Lee Thomas, Jr., was guilty of negligence in losing control of the automobile, causing it to skid sideways, in failing to keep a proper lookout ahead and in failing to change the course of his automobile so as to avoid colliding with that of Mrs. Smith. These negligent acts of the defendant Thomas were alleged to have constituted gross negligence.
1. The defendants Thomas filed general and special demurrers to the petition. The trial court overruled them and this ruling is assigned as error. In connection with the general demurrer, it is argued that the petition fails to allege any causal relation between the negligence charged to the defendants Thomas and the plaintiff's injuries. As to this contention, it is fundamental that for negligence to be actionable it must be the proximate cause of the injury or damage. Shaw v. Mayor & Council of Macon, 6 Ga.App. 306, 64 S.E. 1102; Hall v. Hillside Cotton Mills, 23 Ga.App. 464, 98 S.E. 401. The petition in this case alleges the facts respecting the occurrence of the collision and alleges that as a result of the occurrence of the collision of the two vehicles the plaintiff's body bore the direct force thereof and that as a result of the occurrence complained of plaintiff received a severe contusion of the brain rendering him totally unconscious, has suffered mental and physical pain and disability and will suffer the same for the balance of his life. Paragraph 18 of the petition alleges that the defendant, Roy Lee Thomas, Jr., was grossly negligent in seven particular ways enumerated therein. Paragraph 20 alleges that the defendant, Roy Lee Thomas, Sr., is liable to the plaintiff for all of the acts of negligence committed by Roy Lee Thomas, Jr., because he furnished the automobile to Roy Lee Thomas, Jr., as a family purpose automobile. The allegations of negligence contained in paragraph 18 are clearly referable to the facts alleged in the other paragraphs. With respect to these allegations it requires no construction of the petition to relate them to the facts alleged. If the petition was deficient on account of its failure to allege in exact terms that the negligence charged to the defendant Thomas, Jr., was the proximate cause, or a contributing cause, of the plaintiff's injuries, this defect was one of form only. It amounted to nothing more than a failure to allege an ultimate fact which was clearly shown by the facts pleaded anyway. This deficiency, if it was such, being one of form only, could have been reached only by a special demurrer pointing out specifically wherein the petition was deficient. Katz v. Turner, 49 Ga.App. 81(2), 174 S.E. 167; Hutchins v. Howard, 211 Ga. 830, 831(4), 89 S.E.2d 183. The defendant, however, did not demur specially on this ground and since this defect is at most an amendable one, and since the evidence introduced without objection clearly was sufficient to authorize the jury to find a causal connection between the negligence of the defendant Thomas, Jr., and the plaintiff's injuries, the petition will be treated as having been amended by the evidence under the...
To continue reading
Request your trial
-
Bradham v. State
...error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence. Thomas v. Barnett, 107 Ga.App. 717(5), 131 S.E.2d 818. While the specific portion of the charge of which complaint is made when torn asunder and considered as a disjointed f......
-
Reed v. Dixon
...have given appellant's requested charge. Cf. State Hwy. Dept. v. Davis, 129 Ga.App. 142, 199 S.E.2d 275, supra; Thomas v. Barnett, 107 Ga.App. 717, 725(3), 131 S.E.2d 818 (1963); Jackson v. Ely, 56 Ga.App. 763(4), 194 S.E. 40 (1937). 5. Appellant further enumerates as error the failure to g......
-
Jones v. O'day
...139 Ga. 198, 207-208(9), 77 S.E. 77 (1912); Murray v. Sanford, 226 Ga.App. 591, 592, 487 S.E.2d 135 (1997); Thomas v. Barnett, 107 Ga.App. 717, 725-726(3), 131 S.E.2d 818 (1963). Because Jones is not a minor, this rule does not apply and he was required to provide evidence of his occupation......
-
Johnson v. State, 56929
...error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence. Thomas v. Barnett, 107 Ga.App. 717(5), 131 S.E.2d 818. While the specific portion of the charge of which complaint is made when torn asunder and considered as a disjointed f......