Walker v. Southeastern Stages
| Decision Date | 14 November 1942 |
| Docket Number | 29690. |
| Citation | 22 S.E.2d 742,68 Ga.App. 320 |
| Parties | WALKER v. SOUTHEASTERN STAGES, Inc., et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The overruling of plaintiff's demurrer to amended answers setting up that liability of indemnity company was not more than $5,000 was harmless where judge charged jury that liability of indemnity company was $10,000 as claimed by plaintiff and directed that whatever verdict was rendered should be against all defendants jointly and verdict returned by jury against all defendants was for $2,000 which was covered by $5,000 maximum liability contended for by indemnity company.
In action for death of prospective passenger who was struck by bus while crossing road, where place where accident happened had been fully described and conduct of driver of bus and decedent and plaintiff had been shown in detail, testimony of a witness that driver of bus could have driven into the ditch on the right side of road and turned it over and avoided striking decedent was properly excluded.
Whether bus driver was negligent in not driving bus so as to avoid striking prospective passenger was a question for jury and not a subject on which a witness could express an opinion.
In action for death of prospective passenger who was struck by bus while crossing road, where verdict for $2,000 was returned for plaintiff, instruction that plaintiff claimed that the "accident" occurred at a certain time and place was harmless as against contention that use of the word accident eliminated question of defendants' negligence.
In action for death of prospective passenger who was struck by bus while crossing road, where defendants alleged that death was result of plaintiff's negligence in leaving her aged and feeble mother while crossing road, and evidence tended to sustain the allegations of the answer and presented question for jury as to whether plaintiff was negligent and whether negligence was sufficient to bar a recovery or diminish the amount of damages, charge on comparative negligence was proper.
A charge on comparative negligence is proper even if the question is raised by the evidence and not the pleadings especially where defendants set up plaintiff's negligence as a bar to recovery.
In action for death of prospective bus passenger who was killed while crossing road, any error in charging that there could be no recovery if injury had been done with decedent's consent was harmless in view of verdict for plaintiff.
In action for death of prospective bus passenger, who was killed while crossing road, any error in charge concerning decedent's earnings in arriving at amount of damages was harmless where it was evident from verdict for $2,000 that jury did not consider earnings of decedent who was an aged woman.
That plaintiff's testimony on question of services rendered by decedent was uncontradicted, did not require jury to accept plaintiff's testimony as to services where other parts of plaintiff's testimony were contradicted, if jury disbelieved plaintiff's testimony as to services.
Where verdict returned by jury was for only $2,000 in action against bus company, its driver and liability insurer instruction that in case jury found for plaintiff verdict should be in one lump sum and not in separate amounts, was harmless as against contention that instruction deprived plaintiff of right to recover $20,000 from the bus company and its driver, because insurance company was only liable under the pleadings and evidence for $10,000.
In action for wrongful death of mother, plaintiff's pain and suffering were not proper elements of damages, and it was not error to refuse to give a part of a requested charge that plaintiff contended that she had suffered untold grief and heartache because of her mother's untimely death. That court communicated with jury between 10:30 p. m. and midnight without knowledge or consent of plaintiff concerning jury's remaining together at courthouse for the night was not cause for new trial where no injury was shown especially where communication was simply that court had been unable to arrange place for jury to sleep and that there was no other place for jury to stay for the night but in the jury room.
That jury was required to deliberate in jury room from late in the afternoon on through the night was not a cause for new trial in view of absence of other accommodations and in view of fact that no motion to declare a mistrial was made.
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 accommodations 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.
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."
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