Walker v. Southeastern Stages Inc
| Decision Date | 14 November 1942 |
| Docket Number | No. 29690.,29690. |
| Citation | 22 S.E.2d 742 |
| Parties | WALKER. v. SOUTHEASTERN STAGES,Inc., et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. In an action against a motor common carrrier of passengers, the driver of a bus, and the carrier's insurance carrier, where it appeared that the amount of the carrier's insurance coverage was $10,000, the overruling of a demurrer to an amendment to the insurance company's answer setting up that its liability under a rule of the Georgia Public Service Commission was only $5000 was harmless, if erroneous, for the reason that the jury found against all defendants in the sum of $2000.
2. Under the circumstances of this case it was not error to exclude the testimony of a witness for the plaintiff to the effect that the driver of defendant's bus could have turned the bus to the side and avoided hitting the deceased.
3. The use of the word "accident" in the court's charge to the jury in referring to the occurrence of the injury sued for was not harmful to the plaintiff in eliminating the question of the defendants' negligence, as the jury found that the carrier and its driver were in fact negligent.
4. The charge on comparative negligence was authorized by the evidence, if not the pleadings, and was not error.
5. The charge that if the injury to the deceased was done by her consent plaintiff could not recover was not harmful to the plaintiff, even if erroneous, which we do not hold, as the jury found that the injury was not with the deceased's consent.
6. The charge on the earnings of the deceased was harmless for the reason that it is apparent from the verdict that the jury did not consider the earnings of the deceased in arriving at a verdict. If it in fact did consider such, the charge was favorable to the plaintiff and not the defendants.
7. The charge authorizing the jury to find against all defendants in one lump sum and not in several amounts was not harmful to the plaintiff in view of the verdict against all defendants for $2000, the contention being that it deprived the plaintiff of the right to recover $20,000 from the carrier and its driver, in view of the fact that the insurance carrier was only liable for $10,000.
8. It was not error to refuse to charge the jury on request that the plaintiff contended she had suffered untold grief and heartache because of her mother's untimely death.
9. The communication of the court with the jury on the subject of accommo-dations for a night, in the absence of plaintiff and without her knowledge or consent, is not cause for a new trial under the facts of this case.
10. The fact that the jury was forced to deliberate in a jury room from late in the afternoon on through the night is not cause for a new trial under the facts of this case.
11. The overruling of the motion for new trial was not error.
Error from Superior Court, McDuffie County; C. J. Perryman, Judge.
Suit by Mrs. Tom Walker against the Southeastern Stages, Inc., and others for wrongful death of plaintiff's mother while crossing highway to board a bus. There was a judgment for plaintiff for $2,000, and the plaintiff brings error.
Judgment affirmed.
Mrs. Tom Walker sued Southeastern Stages, Inc., a motor common carrier, Earlie Thomas Pullian, driver of one of its buses, and the Hartford Accident and Indemnity Company, insurance carrier, to recover $20,000 of the first two defendants and $10,000 from the last, for the homicide of her mother. Briefly, the petition alleged that plaintiff's mother was waiting at a filling station, between Dearing and Thomson, for a bus of Southeastern Stages, Inc., on which she intended to become a passenger, destined to Thomson, as was her custom every Saturday afternoon; that two buses came along, both traveling in the direction of Thomson and that when the first bus had passed, plaintiff and her mother, Mrs. Myrtis Hendrix, started across the paved highway for the purpose of boarding the first bus, and that plaintiff crossed the highway safely, but her mother, upon approaching the center line of the highway was struck and killed by a bus driven by Earlie Thomas Pullian. Southeastern Stages, Inc., and Hartford Accident and Indemnity Co. answered denying the material allegations of the petition as amended. They also filed amendments to their answers. One of them was to the effect that the indemnity company was not liable for more than $5000 for the alleged reason that the Georgia Public Service Commission had prescribed a minimum of $5000 liability to be covered by bond or liability insurance. Plaintiff demurred to this amendment on the ground that the liability of the indemnity company was the amount of the insurance actually issued, and not the minimum prescribed by the Commission, it being contended that an insurance policy of $10,000 was actually issued.
The court overruled the demurrer and the plaintiff excepted. The bus company and the indemnity company also filed the following amendment to their answers: "That the proximate cause of the alleged tortious homicide of the plaintiff's mother was the plaintiff's own negligence in that she knew that her mother was an elderly person, sixty-eight years of age; that her mother had failing eyesight and her hearing was not good and that she stooped and that her head was always inclined toward the ground as she stood or walked and slightly towards the left, and knowing all these facts plaintiff left her mother to follow her across a much traveled highway immediately in front of McGahee's filling-station in McDuffie County, Georgia, when due care and ordinary diligence on her part demanded that she escort and assist her mother across said highway, and such negligence on the part of plaintiff bars recovery in this action."
The jury returned a verdict generally in favor of the plaintiff for $2000. The plaintiff excepts to the overruling of her demurrer to the first-mentioned amendment of the indemnity company, and to the overruling of her motion for new trial.
Randall Evans, Jr., and Jack D. Evans, both of Thomson, for plaintiff in error.
Bussey & Fulcher, of Augusta, and J. Glenn Stovall and T. Reuben Burnside, both of Thomson, for defendants in error.
FELTON, Judge (after stating the foregoing facts).
1. The overruling of the demurrer was not harmful to the plaintiff for two reasons: (1) The judge charged the jury that the liability of the indemnity company was $10,000, and directed that whatever verdict was rendered should be against all defendants jointly, and (2) the amount of the verdict rendered against all defendants was $2000 which was covered by $5000 maximum liability contended for by the indemnity company.
2. Exception is taken to the court's refusal to admit in evidence the testimony of a witness for the plaintiff that the driver of the bus could have driven thebus to the ditch on the right side of the road and turned it over and avoided striking the plaintiff's mother. The objection to the testimony, which was sustained by the court, was that it was a conclusion. The ground excepting to the exclusion of the testimony shows that there was evidence as to the physical conditions surrounding the wreck, including the width of the shoulders of the road. The record shows that the place where the casualty occurred had been described by various witnesses; that pictures of the scene were in evidence; and that the conduct of the driver of the bus, of plaintiff's mother, and of the plaintiff had been shown in detail. Whether the driver of the bus was guilty of negligence in not driving the bus so as to avoid striking plaintiff's mother was a question for the jury, and not a subject on which a witness could express his opinion under the circumstances. Dowdy v. Georgia Railroad Co., 88 Ga. 726, 16 S.E 62; Kendrick v. Central Railroad & Banking Co., 89 Ga. 782, 15 S.E. 685; Central Railway Co. v. Bagley, 121 Ga. 781, 49 S.E. 780; Evans v. Kent, 28 Ga.App. 172(2), 110 S.E. 685; Maner v. Dykes, 55 Ga.App. 436, 190 S.E. 189; Whatley v. Henry, 65 Ga. App. 668, 16 S.E.2d 214. Under the circumstances it was not error to exclude the testimony.
3. Exception is made to the following charge: The complaint is that the effect of the use of the word "accident" eliminated the question of the defendants' negligence. This exception is without merit. It is irrefutable, from the verdict in the plaintiff's favor, that the jury did not interpret the word literally, but as something like an "unfortunate occurrence." The jury could not have interpreted the use of the word as eliminating the question of the defendants' negligence and at the same time have found by their verdict that the defendants were guilty of negligence and fixed the amount of damages therefor. The charge was not harmful to the plaintiff.
4. The following charge is excepted to: ...
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