Whitby v. Maloy, 57722

Decision Date04 September 1979
Docket NumberNo. 57722,57722
PartiesWHITBY v. MALOY et al.
CourtGeorgia Court of Appeals

Wills & Ford, James L. Ford, Atlanta, for appellant.

Davis, Casto & Norvell, Phillip M. Casto, Murray & Temple, Malcolm S. Murray, William D. Temple, Decatur, Henning, Chambers & Mabry, Eugene P. Chambers, Jr., Clyde E. Rickard, III, Atlanta, for appellees.

McMURRAY, Presiding Judge.

This is the second appearance before this court of this suit for damages arising from a motor vehicle collision. Since the decision in Whitby v. Maloy, 145 Ga.App. 785, 245 S.E.2d 5, the case has been tried before a jury. The jury returned a verdict finding all the parties equally negligent and awarded the plaintiff a verdict of one dollar against defendant Cather, who was in default. Judgment was entered in favor of defendants Stanley and Maloy and in favor of the plaintiff in the amount of one dollar against defendant Cather.

At trial, following a query from the jury, the trial court had added to its charge in regard to defendant Cather. The plaintiff enumerates as error this additional charge which authorized the jury to apply the principle of comparative negligence as to defendant Cather so as to award nominal damages. Held :

1. Due to his default defendant Cather is in a position of having admitted each and every material allegation of the plaintiff's complaint except as to the amount of damages suffered by plaintiff. Peek v. Southern Guaranty Ins. Co., 240 Ga. 498, 499(1), 241 S.E.2d 210; Flanders v. Hill Aircraft etc. Corp., 137 Ga.App. 286, 287, 223 S.E.2d 482. Defenses which go to the right of recovery are not available to the defendant in default even though the same defense may also go to the assessment of damages. Flanders v. Hill Aircraft etc. Corp., supra, at page 288, 223 S.E.2d 482. The doctrine of comparative negligence goes to the right of recovery as well as to the amount of damages. See McMullen v. Vaughan, 138 Ga.App. 718, 720(2), 227 S.E.2d 440; Kirkland v. Moore, 128 Ga.App. 34, 35, 195 S.E.2d 667; Hatton v. Wright, 115 Ga.App. 14(2), 153 S.E.2d 669; Southern R. Co. v. Alexander, 59 Ga.App. 852, 860(7), 2 S.E.2d 219. Based upon the status of the case sub judice, the trial court, without any doubt, erred in authorizing the jury to apply the doctrine of comparative negligence in determining the damages to be assessed against defendant Cather.

2. However, plaintiff did not plead any special damages in any definite amount against the defendants. Hence, defendant Cather's failure to answer does not result in the admission of the existence of any amount of damages, and strict proof of same is required by law. The record before us contains only a partial transcript of the trial, that is, the trial court's charge to the...

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26 cases
  • Thomas by Thomas v. Duquesne Light Co.
    • United States
    • Pennsylvania Superior Court
    • August 4, 1988
    ...and, therefore, is not available as a defense to a defendant against whom a default judgment has been entered. See: Whitby v. Maloy, 150 Ga.App. 575, 258 S.E.2d 181 (1979); Passino v. Cascade Steel Fabricators, Inc., 105 N.M. 457, 734 P.2d 235 (1986); Adkisson v. Huffman, 225 Tenn. 362, 469......
  • Drug Emporium, Inc. v. Peaks, A97A0710
    • United States
    • Georgia Court of Appeals
    • July 3, 1997
    ...default admitted each and every material allegation of the complaint except the amount of damages suffered by Peaks (Whitby v. Maloy, 150 Ga.App. 575(1), 258 S.E.2d 181), these admissions were not sufficient to authorize a charge on punitive damages because they contained no allegations con......
  • Jordan v. State
    • United States
    • Georgia Supreme Court
    • March 12, 1981
  • Kalamazoo Oil Co. v. Boerman
    • United States
    • Court of Appeal of Michigan — District of US
    • October 3, 2000
    ...no further proof." [Fulton Co. Hosp. Authority v. Hyman, 189 Ga.App. 613, 615, 376 S.E.2d 689 (1988).] See also Whitby v. Maloy, 150 Ga.App. 575, 576, 258 S.E.2d 181 (1979) ("Defenses which go to the right of recovery are not available to the defendant in default even though the same defens......
  • Request a trial to view additional results
2 books & journal articles
  • Trial Practice and Procedure - C. Frederick Overby and Teresa T. Abell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-1, September 1996
    • Invalid date
    ...proximate cause, as well as negligence, having been alleged in plaintiffs complaint is admitted due to the default."); Whitby v. Maloy, 150 Ga. App. 575, 258 S.E.2d 181 (1979); Flanders v. Hill Aircraft & Leasing Corp., 137 Ga. App. 286, 223 S.E.2d 482 (1976). 319. Magnan v. Miami Aircraft ......
  • Torts - Cynthia Trimboli Adams and Charles R. Adams Iii
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-1, September 1996
    • Invalid date
    ...proximate cause, as well as negligence, having been alleged in plaintiff's complaint is admitted due to the default."); Whitby v. Maloy, 150 Ga. App. 575, 258 S.E.2d 181 (1979); Flanders v. Hill Aircraft & Leasing Corp., 137 Ga. App. 286, 223 S.E.2d 482 (1976). 319. Magnan v. Miami Aircraft......

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