Wilson v. Harrell
| Decision Date | 18 March 1953 |
| Docket Number | No. 1,No. 34275,34275,1 |
| Citation | 75 S.E.2d 436,87 Ga.App. 793 |
| Parties | WILSON v. HARRELL et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The trial court erred in overruling special grounds 16, 21, and 22 of the motion for new trial as set forth in the 11th and 14th divisions of the opinion.
Will Ed Smith, Eastman, Randall Evans, Jr., Thomson, for plaintiff in error.
W. S. Mann, McRae, A. Russell Ross and Hal M. Smith, Eastman, for defendants in error.
David Charles Wilson, a minor, by his next friend, Mrs. Maggie Moore, brought a suit in the City Court of Eastman against Jake D. Harrell, as the administrator of J. J. Cheek, and against Georgia Vitrified Brick and Clay Company, for the alleged wrongful homicide of his father, R. E. Wilson. The petition as amended alleged that the said R. E. Wilson was riding in a Buick automobile which was being driven by Cheek; and that the same collided with a truck owned by Georgia Vitrified Brick and Clay Company, which truck was, at the time being operated by its agent and servant in the scope of its business. It was alleged, and the evidence showed that the collision occurred near McRae, Georgia, in Telafair County, when the automobile driven by Cheek in a southerly direction, and in which Wilson was riding as a passenger, passed over an overhead railroad bridge and entered a curve and descent to its right, while the truck of the defendant was being driven in a northerly direction up the said hill and around the curve to its left, and at a point after the automobile had passed over the said bridge and before the truck had reached the bridge. There was conflicting evidence as to the speed of the automobile, it being variously estimated at between 45 and 80 or 85 miles per hour, and there was likewise conflicting evidence as to whether the truck of the defendant company was entirely on its right side of the road. In his petition the plaintiff charged the defendant company with negligence in operating its truck on the left side of the road at the time of the collision. The negligence charged against Cheek was in operating his automobile at a speed that was greater than was reasonable and safe, having due regard for the traffic and road conditions then existing, in operating at 65 or 70 miles per hour down grade and around a curve and in such a manner that the automobile was out of control immediately before and at the time of the collision; and in not reducing his speed on the bridge and descent; and in not driving his automobile as near to the right hand side of the pavement as reasonably possible; and in not maintaining a proper lookout so as to have avoided striking the truck of the defendant, Georgia Vitrified Brick and Clay Company. The defendant company filed an answer denying liability and contending that the negligence of Cheek was the proximate cause of the collision, and that the plaintiff's father by the exercise of ordinary care, could have avoided the collision and the injuries he sustained. The defendant Harrell filed a plea that no assets of the estate of J. J. Cheek had come into his hands as administrator, and that he does not now have any money or control any property belonging to the said estate; and he further pleaded that, if the plaintiff was injured as a result of the negligence of Cheek, then he was encouraging, aiding, and abetting Cheek in such negligence, assumed the risk incident thereto, and can hold no one responsible therefor.
After the introduction of evidence and the charge to the jury, a verdict in favor of the defendants was returned. The plaintiff made a motion for a new trial on the general grounds and on 27 special grounds, which was overruled, and the exception here is to that judgment.
1. Special ground 1 of the motion for a new trial complains that the court, in instructing the jury that they should look to the pleadings of the parties, which would be out with them, to ascertain the contentions of the parties, used in one place, referring to the injury and death of the plaintiff's father or to the collision which caused the injury and death, the term, 'this unfortunate affair,' and in another place the term, 'this accident or collision.' It is contended that this language tended to minimize the gravity of the negligence of the defendants, and tended to impress the jury with the idea that there was a contention that the injury and death of the plaintiff's father was the result of an accident unmixed with the negligence of anybody.
This charge is not subject to that criticism. It is clear that the use of the term 'accident' was in the sense of injury or collision, and the jury undoubtedly so understood it. Exact legal preciseness of language by the trial judge in his instructions to the jury is not always attainable, however desirable such an end may be. While the use of the words 'this unfortunate affair' and the word 'accident' may not have been legally precise where there was no contention that the occurrence was an accident in the legal sense, nevertheless, it is not apparent that the jury could have misunderstood the true meaning and intention of the trial judge in his use of such words. This ground of the motion does not show error. See Butler v. Central, of Georgia Ry. Co., 41 Ga.App. 115(4), 151 S.E. 834.
2. Special ground 2 complains of the following portion of the charge: This charge is alleged to have been erroneous and injurious and harmful to the plaintiff because the statement, that 'A voluntary agent, without hire or reward, shall be liable only for gross neglect,' was not applicable to the contentions made in the pleadings or by the evidence, and because the only agent involved and to whom such charge could have been applicable was the driver of the truck of Georgia Vitrified Brick and Clay Company; and such charge had the effect of leading the jury to believe that such company was liable only for gross negligence on the part of such agent, whereas it was conclusively shown that such agent was not a voluntary agent, or one without hire, but was an agent for hire, and this placed a greater burden on the plaintiff than he was required to carry because it was only required that ordinary negligence be proved against such agent.
While the giving of this charge may have been inapt and not entirely adjusted to the pleadings or the evidence, it was not reversible error. The evidence was clear that the driver of the truck belonging to Georgia Vitrified Brick and Clay Company was an employee of that company, in other words that he was an agent for hire. There was no evidence whatsoever that he was a voluntary agent or one without hire, and the jury could not have been mislead by this portion of the charge since, immediately preceding the specific portion complained of and in immediate connection therewith, the court told the jury that an agent for hire would be bound to exercise ordinary skill and diligence. While it may be conceded that the court did not specifically withdraw this portion of the instructions, and while it may be further conceded that the instruction was not strictly adjusted to the pleadings and the evidence, it is not likely that it had the harmful effect contended, and the trial court did not err in overruling this ground.
3. Special ground 5 of the motion for new trial complains that the court erred in giving the following instructions to the jury: The principal criticism by the movant of this charge, as shown by the motion for new trial, was that the charge that if Wilson knew that his host Cheek was under the influence of intoxicants, or was careless or was driving in a reckless or dangerous manner, then it was Wilson's cuty to take such steps as an ordinarily prudent person would take under the same or similar circumstances, etc., amounted to an instruction that, if the jury found that Cheek was merely careless, then they would be authorized to find that Wilson should have taken steps for his own protection, etc., without regard to whether such carelessness was endangering the occupants of the car; and that it required Wilson to take certain steps for his own protection merely because the driver of the automobile in which he was riding was careless without regard to whether such carelessness was reflected in the driving of the automobile or was connected in any way with the method of operating the automobile; and that it injected into the case a contention not supported by the pleadings or...
To continue reading
Request your trial
-
U.S. Fidelity & Guaranty Co. v. Evans
... ... Wilson ... Page 816 ... v. Harrell, 87 Ga.App. 793, 796(3), 75 S.E.2d 436 ... While the doctrine of assumption of risk is not itself ... ...
-
Claxton Poultry Co., Inc. v. City of Claxton
...and avoid repetitive and argumentative charges to avoid unduly stressing the contentions of the parties. See Wilson v. Harrell, 87 Ga.App. 793, 806(13), 75 S.E.2d 436; Cohran v. Douglasville Concrete Products, 153 Ga.App. 8, 14(4), 264 S.E.2d For the same reason, two other written requests ......
-
Union Camp Corp. v. Helmy, 45285
...that the only applicable case law in Georgia consists of the three decisions of the Georgia Court of Appeals in Wilson v. Harrell, 87 Ga.App. 793, 799(4), 75 S.E.2d 436 (1953); Smith v. American Oil Co., 77 Ga.App. 463, 500-503(2c), 49 S.E.2d 90 (1948); and Mishoe v. Davis, 64 Ga.App. 700, ......
-
Cohran v. Douglasville Concrete Products, Inc., 58627
...great care and deliberation. We find that the charge is indeed open to the criticism made of it. See generally, Wilson v. Harrell, 87 Ga.App. 793, 806(13), 75 S.E.2d 436 (1953). However, since we are reversing the case on other grounds, we deem it unnecessary to discuss specifics. Upon a ne......