Black v. Aultman
Black v. Aultman
Opinion of the Court
Helen Jennings Black brought an action against D. Wilder Aultman and Herbert S. Brown seeking recovery of damages for the death of her child resulting from the child’s being struck by an automobile owned by D. Wilder Aultman and driven by Herbert S. Brown on the occasion in question. All of the allegations of negligence related to the negligence of Herbert S. Brown, the driver. Herbert S. Brown was a sales manager for the business operated by D. Wilder Aultman known as Aultman Motor Company. The jury returned a verdict for both defendants. The plaintiff’s motion for judgment notwithstanding the verdict as to the liability of Herbert S. Brown and plaintiff’s motion for new trial were overruled and plaintiff appealed. Held:
1. Under Section 17 of the Appellate Practice Act of 1965 as amended by Section 9 of the Act of 1968 (Ga. L. 1965, pp. 18, 31; Ga. L. 1968, pp. 1072, 1078; Code Ann. § 70-207) it , is necessary that an appellant make proper objection to a charge as given or to a request refused and state the grounds therefor before the jury returns its verdict. The mere exception to a failure to give a numbered request to charge fails to meet this requirement. U. S. Security Warehouse, Inc. v. Tasty Sandwich Co., 115 Ga. App. 764 (1) (156 SE2d 392). “To be reviewable the objection must be unmistakable in its
2. There was no error in denying the request to charge the extended discussion of the purpose for the passage of Georgia’s wrongful death statute and the theory on which it was based contained in Savannah Electric Co. v. Bell, 124 Ga. 663, 668 (53 SE 109). The discussion therein contained was not appropriate for a charge to a jury. Enumeration of error number 5 is, therefore, without merit.
3. The evidence was sufficient to authorize the charge to the jury on the degree of care to be exercised by the defendant driver if the jury found he was confronted with a sudden emergency not of his own making. Enumeration of error number 8 is therefore without merit.
4. Enumerations of errors numbers 21 and 22 are as follows: “The trial court erred in charging the jury that in order for the plaintiff to recover, ‘it must appear from a consideration of the evidence . . . that this defendant’s agent or servant failed to exercise ordinary care and diligence . . . ’ ” and “the trial court erred in charging the jury that the plaintiff would not be entitled to receive compensation for dam
5. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” See Section 15 (b) of the Civil Practice Act (Ga. L. 1966, pp. 609, 627; Code Ann. § 81A-115). It follows, therefore, that the trial court did not abuse its discretion in allowing an amendment by the defendant offered after the close of the evidence for the purpose of conforming the pleadings to certain testimony obtained principally from witnesses for the plaintiff, the amendment alleging: “The death of the plaintiff child was the result of the negligence of Claudette Jennings, who was at that time and place [of the injury of said child] the agent of the plaintiff for the care and custody of said child.” Enumeration of error number 14 complaining of the allowance of said amendment is without merit.
6. The charge on damages, and the refusal to charge a request on damages (enumerations of error numbers 27 and 28) “even if erroneous, affected only the amount of damages and would not authorize the finding of no damages, and the jury having found a verdict for the defendant[s], such error is harmless and does not require a reversal.” Baldwin Proc. Co. v. Ga. Power Co., 112 Ga. App. 92 (7) (143 SE2d 761).
7. Enumeration of error number 15 complains of the refusal of the trial judge to give plaintiff’s request to charge number 20' which reads as follows: “Gentlemen of the Jury, I charge you that as a matter of law the deceased child, was too young, immature and inexperienced to possess sufficient judgment, prudence and discretion to be chargeable with the failure to ■ exercise due care for his own safety or with any contributory negligence. Therefore, in determining whether or not Defendant Brown was negligent and whether that negligence, if any, was a proximate cause of the collision that produced the child’s death, you, are not to consider whether or not the child used any care for his own safety, since under the law of Georgia, he was not chargeable with the duty of exercising
8. Enumeration of error number 23 complains that the action of the trial judge, hereinafter set forth, denied him the right of thorough and sifting cross examination of the defendant driver. “The right of cross examination is not abridged by confining it to matters in some way germane to the issue being submitted; and where it is not attempted to be shown that facts sought to be developed are remotely connected with the case, there is no error in excluding them because of their immateriality.” Stevens v. State, 49 Ga. App. 248, 251 (174 SE 718). The driver defendant was the sales manager for the other defendant and the child in the present case was injured while the driver defendant was on his way home
9. The trial judge charged the jury as follows: “In the course of my charge, I have or will mention to you statutory provisions in Georgia relative to sounding a horn when necessary. By charging these provisions relative to sounding a horn, I do not mean to express an opinion that in this case the law required Mr. Brown to sound his horn. Under the ' law that is a jury question, so it is for you to say whether or not Mr. Brown should, in the exercise of ordinary care under the circumstances in this case, have sounded his horn.” (Emphasis supplied.) The charge is not subject to the criticism that it was error “because the court did not state that he did not mean to express an opinion that Mr. Brown should not have blown his horn, that the law did not require Mr. Brown to sound his horn.” Enumeration of error number 24 is, therefore, without merit.
10. The trial judge charged the jury as follows: “In the case now being considered by you, the evidence shows that there were no appropriate signs giving notice of any reduced speed at the time of the collision with which we are concerned. I, therefore, charge you that unless you find that special hazards requiring a lower speed did exist, the maximum speed in the area in which this defendant contacted the plaintiff’s son would be 50 miles per hour at the time of such contact.” This charge is not subject to the criticism “that it fails to consider Code Section 68-1626 (C) and Code Section 68-1626 (A) which requires the automobile driver to exercise due care and to drive at an appropriate speed when other situations exist and that this charge was prejudicial in that it indicated to the jury that the speed limit was 50 miles an hour rather than a reasonable speed giving regard to the conditions and circumstances.” The law of this State, which is apparently referred to in the sections of the Georgia Code Annotated mentioned in the above objection, was charged
11. A police officer had testified that at the location in question there were no posted speed limit signs. There was no testimony or evidence to the contrary. There was other uncontradicted evidence that the location in question was outside the city limits. The witness was asked what the speed limit was at the location in question. The plaintiff objected on the ground that the statute itself would be the highest and best evidence as to the speed limit in the locality. The objection was overruled and the witness testified that the speed limit in the locality was 50 miles per hour. There was no dispute that at the time in question it was night,' so that the general nighttime speed limit of 50 miles per hour applied, in the absence of factual situations which might call for application of exceptions requiring a slower speed under the particular circumstances. Article V, Section 48 of the Georgia “Uniform Act Regulating Traffic on Highways” as last amended by the Act of 1965, page 322 (Code Ann. § 68-1626). Paragraphs (a) and (c) of this section were given in charge to the jury and other provisions relating to reduction of speed and exercising precaution when observing or approaching a child near or upon a highway. It is plain from the testimony of the officer that he was testifying as to the general nighttime speed and was not testifying in reference to the exceptions that might be applied; and in view of the charge of the trial court, we can not say that the plaintiff was harmed by the testimony of the officer, which in its intent, was in conformity with the statute as to what was basically the maximum speed limit in the locality. In our opinion, enumeration of error number 25 is without merit.
12. The evidence was sufficient to authorize a verdict in favor of the defendants and the trial court did not err in entering the judgment on the verdict and in overruling the plaintiff’s motion for new trial and in overruling the plaintiff’s motion for judgment notwithstanding the verdict.
Judgment affirmed.
Dissenting Opinion
dissenting. I would vote to reverse the trial court on the charge to the jury as set forth in enumerations of error 21 and 22 which are dealt with in Headnote 4 of the majority opinion herein.
This lawsuit proceeded against two defendants, the owner and the driver of the automobile alleged to have caused the injuries. The plaintiff was entitled to a recovery against the driver alone if the evidence showed said defendant-driver committed negligence which was the proximate cause of the injuries; and the jury could have exonerated the owner-defendant through a finding of lack of agency as to the driver.
But the trial court charged the jury in such fashion as to impress the jury that no recovery could be had against the driver of the vehicle unless a recovery was also warranted against the owner of the vehicle by proof of agency. This charge is recited in Headnote 4 of the majority opinion.
The appellee makes the contention in his brief that this instruction to the jury by the trial court was harmless in that the trial court qualified same by the preface “in this respect,” meaning, in respect to that part of the charge on the question of agency and on the question of finding both the owner-defendant and driver-defendant liable. But, no such qualification appears in the charge as reported in the record at page 297, for there the trial court charged as follows:
“The plaintiff contends that she is entitled to have and receive at your hands a verdict compensating her for the value of the life of her son. The defendant replies to that contention and said that the defendants were not negligent in any way or in any manner as set out in her writ and that they are not responsible or liable for any damages she claims to have sustained and says that she is not entitled to have and receive a verdict at your hand.
The above portion of the charge was error in that the driver could have been found liable irrespective of whether or not he was “defendant’s agent or servant” and no doubt this compounded the impact received by the jury when added to the other language in the charge.
But the majority opinion asserts that appellant did not comply with the requirements of Code Ann. § 70-207 (Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078) in respect to objecting to the charges given before the jury returned its verdict. Appellant did make the following objection: “Plaintiff objects to the charge of the court on the question of agency and liability under the doctrine of agency on the ground that the charge as given, quoting a portion thereof: ‘That he was not at the time the agent of Mr. Aultman or on the business of Mr. Aultman, you must find in favor of the defendant Aultman.’ The plaintiff excepts to this portion of the charge in that the charge fails to include the legal rule which is in the furtherance of the employer’s business and argumentative exclusion of the rule of law which should appropriately be charged in order not to prejudice the plaintiff.” (Emphasis supplied.) Conceding that this objection was in rather general terms, still I feel that it sufficiently complied with the statutory requirements. Quoting Code Ann. § 70-207, supra, in part: “Opportunity shall be given to make objection out of the hearing of the jury and objection need not be made with the particularity of assignments of error (abolished by this law) and need only be as reasonably definite as the circumstances will permit.” (Emphasis supplied.)
The writer is familiar with the many authorities of this court construing this language, and it appears that a very high degree of specificity is required by such decisions. With those
I am in complete disagreement with the holding by this court that “If no error is observed in the charge by trained and astute counsel it is likely that the untrained juror will not be influenced by such charge.” See Dowis v. McCurdy, 109 Ga. App. 488 (136 SE2d 389). Surely, it must be recognized that an attorney who tries a case in court has a multitude of duties to perform, and is at no time relaxed and objective in his consideration of the various matters that claim his attention. Witnesses wish to be allowed to remain at home; witnesses wish to be taken out of turn; witnesses claim they know nothing about the case or anything that would be helpful; opposing counsel brings forth new and novel matters during the trial; rulings are made which completely surprise counsel and require his utmost skill to prevent a dismissal of the case prior to reaching the stage when the jury will decide it. Then, the case reaches its climax when counsel, with the closing argument sums up and tries to marshal all of his strongest points, while at the same time making reply to the strong points advanced by opposing counsel. When he finishes and sits down and the court begins charging the jury, oftentimes the court has finished half of his charge before such counsel grasps the meaning of any sentence the court is giving in charge to the jury. What position then is he in to make objection to the charge of the court? What construction should be placed on that language in the statute which says he need “only be as reasonably definite as the circumstances will permit”?
As to whether or not the jury would be impressed by an erroneous charge of the court when trained counsel might not be impressed, let it be remembered that the jury has had no responsibility whatever for the trial of the case except to listen to the evidence and to the rulings made by the court. When they finally come to that place where the judge charges the jury they are relaxed and alert and are listening to the one high authority, one in whom they have supreme confidence, who is impartial and who is learned in the law and who will instruct them
But, this statute (Code Ann. § 70-207, supra) makes provisions for such circumstances in paragraph (c) thereof as follows: “Notwithstanding any other provision of this section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” (Emphasis supplied.)
Thus, no objection whatever need be made as to substantial error, and any error that is not substantial should not be considered as cause for reversal anyway. So, after all, we need be concerned only with “substantial error.”
Time and again this court has refused to consider allegedly erroneous charges to the jury, because counsel did not make proper objections, and a high degree of specificity is required, so much, that it is difficult to understand exactly what is required in an objection to a charge. This court has even held that the objection is not good unless the lawyer goes further and tells the court what language should have been charged to the jury. Ga. Power Co. v. Maddox, 113 Ga. App. 642, supra. This does not seem to comport with or lie in consonance with the language of the statute: “ . . . objection need not be
made with the particularity of assignments of error . . . and need only be as reasonably definite as the circumstances will permit.” This language could mean anything or nothing. What is meant by the term “as the circumstances will permit?” What circumstances? This court, I repeat, has held that the lawyer must even tell the trial court what he should have charged the jury in lieu of the language objected to. Is there a lawyer anywhere who is able to get up after he has tried his case and go over the charge of the jury, excerpt by excerpt, from memory or notes, and then and there tell the court what parts were erroneous, how and wherein they were erroneous, with great specificity, and then tell the court as to each excerpt objected
We are familiar with the trend of some of our Federal authorities construing their rules on this subject, and we are told that such should be given much weight, as these new rules in Georgia are modeled after the Federal rules. But, at most, the Federal authorities are persuasive, and are not binding on our Georgia courts, and I feel that they are entirely too binding on an attorney who complains of an erroneous charge to the jury. If it is to be the law that new trials should not be granted because of error in the charge, that would be preferable to having the same result reached through holding that the lawyer did not properly make objections to the error and in laying down rules with which he finds it impossible to comply. As to the binding force of Federal decision on this court, I call attention to the manner in which we have dealt with such authority in the past. See Code Ann. § 2-8001 (Const. of 1945); Etowah Heading Co. v. Anderson, 73 Ga. App. 814 (38 SE2d 71); Hertz v. Abrahams, 110 Ga. 707, 718 (36 SE 409, 50 LRA 361); Thompson v. Eastern Air Lines, Inc., 200 Ga. 216, 222 (39 SE2d 225); Thornton v. Lane, 11 Ga. 459 (4).
I therefore would vote to reverse upon the ground that substantial error was committed which required no objection whatever prior to return of the verdict.
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