Wade v. Hopper

• Court: Georgia Court of Appeals
• Writing for the Court: GARDNER
• Citation: Wade v. Hopper, 89 Ga.App. 87, 78 S.E.2d 809 (Ga. App. 1953)
• Decision Date: 30 October 1953
• Docket Number: No. 2,No. 34762,34762,2
• Parties: WADE v. HOPPER

Page 809

78 S.E.2d 809

89 Ga.App. 87

WADE v. HOPPER.

No. 34762.

Court of Appeals of Georgia, Division No. 2.

Oct. 30, 1953.

Syllabus by the Court

1. The Superior Court of Houston County has jurisdiction for the reasons set out in division 1 of this opinion.

2. The petition as amended is sufficient as against the general demurrers.

3. In a suit for damages for breach of contract, even though required by the statute of frauds to be in writing, such a petition is not demurrable because the petition does not set forth whether or not the contract was in writing.

4. The evidence is sufficient to sustain the verdict on the general grounds.

5. The special grounds show no cause for reversal, for the reasons given in the body of the opinion.

This is a damage suit involving the collision of two motor vehicles driving in the same direction. Richard J. Hopper, plaintiff in the court below (the defendant in error here), we shall hereinafter call the plaintiff. Charles W. Wade we shall call the defendant. The plaintiff was driving in what is generally known as a house trailer, which the plaintiff himself was operating. The defendant's motor vehicle was a truck driven by an agent of Wade. The two vehicles were driving, in the same direction, on U. S. Highway No. 41 in Houston County, Georgia. The defendant's truck was traveling behind the plaintiff's vehicle. The collision took place, according to the plaintiff's version, when the vehicle of Wade negligently attempted to pass the vehicle of the plaintiff. According to the defendant's contentions, the collision occurred when the plaintiff's vehicle was bumping and swerving on a rough pavement and the house trailer became loose from the motor-vehicle portion of the house trailer, and the defendant's vehicle did not strike the plaintiff's vehicle but, to the contrary, the plaintiff's vehicle struck that of the defendant. The plaintiff and the defendant were nonresidents of the State of Georgia. The suit was brought in the Superior Court of Houston County.

To the petition, as amended, the defendant filed a plea to the jurisdiction and in bar subject to his general and special demurrers to the petition, and to the answer to the petition, and a cross-action embraced in the answer, respectively. The court overruled the plea to the jurisdiction and the demurrer. To these judgments and defendant filed exceptions pendente lite. A verdict for $7,500 was returned in favor of the plaintiff. The defendant filed an amended motion for new trial, which was denied. He assigns error, in exceptions pendente lite, on his pleas to the jurisdiction and in bar, on the exceptions pendente lite overruling his demurrer, and on the judgment denying his amended motion for new trial. We will discuss these questions in the order named.

Miller, Miller & Miller, Macon, for plaintiff in error.

Nunn & Aultman, Perry, Martin, Snow & Grant, Macon, for defendant in error.

GARDNER, Presiding Judge.

1. The special plea to the jurisdiction and in bar is based on the following contention: Regarding the nonresident statute of this State, Code, § 68-803, Ga.L.1947, p. 305. The act of 1947, supra, was amendatory of the act of 1937, pp. 732, 734. The act of 1947 was attacked by the defendant, under his pleas to the jurisdiction and in bar, as being unconstitutional under the Constitution of Georgia and under the Constitution of the United States. When the case was brought to this court it was, because of the constitutional questions raised under the plea to the jurisdiction and in bar, transferred to the Supreme Court, under the interpretation of this court that the Supreme Court and not the Court of Appeals had exclusive jurisdiction to decide such a constitutional question. The Supreme Court, in a divided opinion rendered a decision on June 8, 1953, Wade v. Hopper, 209 Ga. 802, 76 S.E.2d 403, 404. During the course of the majority opinion the court said: 'Therefore, without regard to the 1947 act, supra, the suit was properly brought in Houston County, a county in this State, even though it is also the county in which the accident occurred. It follows, the constitutionality of the act of 1947, supra, is not drawn into question since, even under the prior law, the Superior Court of Houston County has jurisdiction of this cause.' The Supreme Court transferred this case back to the Court of Appeals. Therefore, insofar as the plea to the jurisdiction and in bar is concerned, Houston County has jurisdiction in the instant case. This issue is thus eliminated from the consideration of the Court of Appeals.

2. The petition as amended by the plaintiff is sufficient as against the general demurrer. This assignment of error is not meritorious.

3. The only special demurrer argued here is that the plaintiff alleged damages for loss of earnings for three months in the amount of $1,500; and this allegation was specially demurred to on the ground that the plaintiff did not allege whether or not the contract of employment was oral or written. The defendant cites in support of his contention Davis Truck Lines v. Central Truck Lines, Inc., 85 Ga.App. 433, 69 S.E.2d 651. That decision is not applicable to the instant case. That decision holds only to the effect that the terms and conditions of the contract should be set out. It says nothing about whether it be oral or in writing. That is not the correct rule, as has been stated by many decisions of this court and of the Supreme Court. The true rule is that, even where a contract is directly attacked by a special demurrer, the defendant cannot require a plaintiff to allege whether or not the contract sued on is in writing or parol. The Supreme Court in Draper v. Macon Dry Goods Co., 103 Ga. 661, 30 S.E. 566, said: 'In a suit for damages growing out of a breach of contract, required by the statute to be in writing, the petition is not demurrable upon the ground that it does not set forth whether or not the contract was in writing.' See, in this connection, Freeman v. Matthews, 6 Ga.App. 164(1), 64 S.E. 716; Georgia, F. & A. Ry. Co. v. Parsons, 12 Ga.App. 180(1), 76 S.E. 1063; Kiser Co. v. Padrick, 30 Ga.App. 642, 118 S.E. 791; and North v. North, 59 Ga.App. 442(2), 1 S.E.2d 215.

4. As to the general grounds, the verdict is supported by sufficient competent evidence, although the evidence is in sharp conflict.

5. (1) Special ground 1 assigns error on the following excerpt from the charge of the court: 'Now, gentlemen, I will charge you the rule of law known as the principle of comparative negligence. It will be applied first to the plaintiff's claim that he is entitled to damages from the defendant. And second, to the defendant's claim that he is entitled to damages from the plaintiff. First, as to the plaintiff's claim; if the jury should find that the plaintiff was negligent and that his negligence contributed to the plaintiff's injuries and damages, and that the defendant was negligent, and that his negligence contributed to the injuries and damages of the plaintiff, if any, it would be the duty of the jury to determine the degree of plaintiff's negligence contributing to the plaintiff's damages, and the degree of the defendant's negligence contributing to the plaintiff's damages; and if in so doing the jury should find that the degree of negligence of the plaintiff contributing to the plaintiff's damages was equal to or greater than the degree of negligence attributable to the defendant causing damage to the plaintiff, the plaintiff would not be entitled to recover. However, if the jury should find that the degree of negligence attributable to the plaintiff was less than that attributable to the defendant, the plaintiff would be entitled to recover, but not the full amount of his damages. Those damages, when ascertained, should be reduced by the jury in proportion to the degree of negligence attributable to the plaintiff. I charge you, however, gentlemen, that if the plaintiff in this case by the exercise of ordinary care, as heretofore defined for you, could have avoided the consequences caused by the negligence of the defendant, if the defendant was negligent, where that negligence became apparent to the plaintiff, or by the exercise of ordinary care upon his part he could have become aware of it, the plaintiff is not entitled to recover in any amount.' (Italics ours.)

This charge is attacked on the grounds: (a) That it is not a correct abstract principle of law; (b) that it illegally permitted the jury to find against the movant; (c) that it illegally permitted the jury to find against the movant, although the jury concluded that the negligence of the movant exceeded the negligence of the plaintiff, but that the negligence of neither, nor a combination or conjunction of negligence of both, was the proximate cause of the plaintiff's alleged injuries and damages, all contrary to law and to the prejudice and injury of the movant; and that nowhere in the charge was the alleged error cured. The defendant cites in support of his contention, Whatley v. Henry, 65 Ga.App. 668, 16 S.E.2d 214. We find nothing in that case which requires us to hold erroneous the charge in the instant case. See Southern Ry. Co. v. Nichols, 135 Ga. 11(4), 68 S.E. 789; Simon v. Simmons, 36 Ga.App. 518, 137 S.E. 282; Railway Express Agency v. Mathis, 83 Ga.App. 415(6), 63 S.E.2d 921. This court in the last case cited held correct a charge on the same principle, and in many instances in the same language as in the instant case. The assignment of error in this special ground is without merit.

(2) Special ground 2 complains of the following excerpt from the charge: 'Now, gentlemen, I will charge you the rule of law known as the principle of comparative negligence. It will be applied first to the plaintiff's claim that he is entitled to damages from the defendant. And second, to the defendant's claim that he is entitled to damages from the plaintiff. First, as to the plaintiff's claim; if...