Western & A. R. R v. Henderson, (No. 17109.)

• Decision Date: 12 May 1926
• Docket Number: (No. 17109.)
• Citation: 133 S.E. 645,35 Ga.App. 353
• Parties: WESTERN & A. R. R. v. HENDERSON et al.
• Court: Georgia Court of Appeals

35 Ga.App. 353

133 S.E. 645

WESTERN & A. R. R.

v.HENDERSON et al.

(No. 17109.)

Court of Appeals of Georgia, Division No. 1.

May 12, 1926.

Rehearing Denied June 15, 1926.

(Syllabus by the Court.)

Bloodworth, J., dissenting.

Error from Superior Court, Whitfield County; M. C. Tarver, Judge.

Suit by Mrs. Mary E. Henderson and others against the Western & Atlantic Railroad. Judgment for plaintiffs, and defendants bring error. Reversed.

Tye, Peeples & Tye, of Atlanta, Sam P. Maddox, of Dalton, and Neel & Neel, of Cartersville, for plaintiffs in error.

Gordon Mann, of Bradentown, Fla., and W. E. Mann and J. A. McFarland, both of Dalton, for defendant in error.

LUKE, J. Mrs. Mary Henderson sued the Western & Atlantic Railroad for the homicide of her husband, who was killed at a railroad crossing while driving an automo bile used for trucking purposes. She alleged that the crossing was in an unsafe condition, and that the train crew were negligent in the operation of the train; that her husband was in the exercise of ordinary care for his own safety, and that his death was the result of the negligence of the railroad company. The railroad company denied the allegations of negligence and insisted that the direct and approximate cause of the death of plaintiff's husband was his own lack of ordinary care and prudence, etc.

The plaintiff's husband was in the employ of a Coca-Cola Bottling Company at the time of his injury. Compensation had been allowed her by the Industrial Commission under the Workmen's Compensation Act (Laws 1920, p. 167) in a sum aggregating approximately $4,000. The Maryland Casualty Company had a Contract of insurance with the Coca-Cola Bottling Company, whereby it became liable to the plaintiff for the award made under the Workmen's Compensation Act. The insurance company intervened, without objection,.as party plaintiff, praying subrogation up to the amount for which it had become liable under its contract of insurance, by reason of the award made under the Workmen's Compensation Act. The jury returned a verdict in favor of the plaintiff for $10,000, and in favor of the Maryland Casualty Company upon its intervention. A motion for a new trial was overruled.

The evidence is in conflict, but we cannot say that the jury were not authorized to find from the evidence a verdict in favor of the plaintiff; and if the sole assignment of error were as to the sufficiency of the evidence, the case would fall within the rule that, where there is some evidence to authorize a verdict, approved by the trial judge, this court is by law powerless to interfere.

The criticism of the court's charge and of the refusal to charge, as set out in special grounds 4, 5, 6, 7, 8, and 9, when the charge of the court is read in Its entirety, is without merit. Indeed, the charge of the court as a whole was most fair and gave to the defendant the benefit of its every contention and legal right. The charge was not confusing nor misleading, as we view it, certainly for any reason pointed out. The tenth ground of the motion for a new trial attacks the legality of the trial for the following reason:

"Upon the trial of said case, after the court had charged the jury, the jury retired to its room for consideration of the case and remained in its room for several hours, and then returned to the courtroom, when the following occurred:

" 'Court: Mr. Foreman and gentlemen, I am informed by the bailiff that you desire some further instruction with reference to some part of the case or the issues involved.

" 'Foreman: Yes, judge. In regard to the insurance company, we don't understand how thatcould get into this case, how we' are to deal with it.

" 'Court: The claim of the intervener, Maryland Casualty Company, should not in any way affect your verdict as between the plaintiff and the defendant. If you find in favor of the defendant, you will not be concerned in any way with the claim of the intervener. In the event, however, you should return a verdict for the plaintiff for any amount, it will be your duty to add to that verdict these words: "And we further find for the intervener, the Maryland Casualty Company." I charge you, as a matter of law, if you find a verdict for any amount for the plaintiff, it would be your duty to add to that verdict this finding in favor of the intervener; which means that the recovery in favor of the plaintiff, if there be one, will be subrogated to the claim of the intervener, for such amount as it may have expended, or may hereafter expend, in discharging its contract with the Coca-Cola Bottling Company for the payment of such amounts as the Coca-Cola Bottling Company might have become liable for its employee under the Georgia Workmen's Compensation Act. If you do not understand that in full, if any member of the jury desires to ask me any question about it, he may do so, and I will endeavor to answer it so as to make it.clear to you.

"'Juror: If we should give a verdict for so much, then the insurance company should be...