Adams v. Smith., 129 Ga. App. 850, 201 S.E.2d 639 (1973)
Linked as:
Summary
Judgment affirmed. Hall, P. J., and Clark, J., concur.
Summary
Judgment affirmed. Hall, P. J., and Clark, J., concur.
Text
Farrar & Farrar, Curtis Farrar, for appellee.Sharpe, Hartley & Newton, W. Ward Newton, for appellant.
Lowell Smith, plaintiff, sued Ted Lynn Adams, defendant, because of injuries received by plaintiff when he fell from the front fender of an automobile driven by defendant, as they were engaged in hunting rabbits. Verdict and judgment were rendered in plaintiff's favor and defendant appeals. Defendant's brief sets forth his version of the evidence, but in cases such as this, where a verdict and judgment are rendered in the lower court, and approved by the trial judge, the evidence must be construed most favorably towards the prevailing party so as to support the verdict, and all conflicts and inferences arising from the evidence must be construed in favor of the prevailing party. See Boatright v. Rich's,
Additionally, in this case, the jury could have concluded that the rabbit hunting had ceased, because defendant was deliberately trying to dislodge plaintiff from the front fender of the car, by running at a high rate of speed, not responding to the hollered requests to slow down, and when the high speed did not dislodge him, deliberately "slamming on," the brakes, which threw plaintiff into the road.
The lower court did not err in refusing to charge defendant's written request, or otherwise instruct the jury, that the court will not lend its assistance to a party seeking to recover of another with whom he is engaged in an illegal enterprise.
4. The jury, after deliberating for awhile, returned to the courtroom and stated to the court: "We would like to ask does the defendant -- does he have insurance and what kind and how much -- that we may look at it." The trial judge promptly and tersely replied: "You may not." This as effectively squelched the question of insurance as would have the court's acceding to request of defendant's counsel to instruct the jury that the existence or non-existence of insurance was not relevant and could not be considered in the course of the jury's deliberations. There was no error in failing to instruct the jury in the language requested by the defendant; nor in failing to grant his motion for mistrial, premised on the allegedly improper conduct of the jury in this connection.
5. The jury's verdict was as follows: "We the jury reach a verdict that Ted Adams, the defendant, was more careless than the plaintiff, James Lowell Smith, and the defendant should pay the sum of $5,000 to plaintiff."
Defendant moved for a mistrial because the verdict was not in proper form. It is clear that the jury rendered a verdict for plaintiff and against defendant for $5,000 and the remainder is mere surplusage and may be disregarded. See Fraser v. Jarrett,
Further, if defendant was dissatisfied with the form of verdict, a motion for mistrial was not the proper way to correct the error; in such case it is necessary to move the court to direct the jury to return to the jury room and render a verdict in the proper form. Tift v. Town,
6. No error was committed by the trial court in its failure to direct a verdict for defendant, based upon the contention that plaintiff and defendant were engaged in an illegal enterprise at the time of the injuries. (See discussion in Division 3 above.) In his motion for judgment notwithstanding the verdict, and in his brief defendant seeks to enlarge on his motion for directed verdict, by adding that such recovery cannot be had merely upon proof of "carelessness" by the defendant. Pretermitting the soundness of this contention, "carelessness" was not mentioned in the motion for directed verdict, and could not thereafter be added into the motion for judgment notwithstanding the verdict, nor in the brief before this court. Code Ann. 81A-150 (b) ( 50, CPA; Ga.L. 1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248) requires that the motion for judgment notwithstanding the verdict be made "in accordance with his motion for directed verdict." Turk v. Jackson Electric Membership Corp.,
7. Defendant complains because the trial judge did not instruct the jury that plaintiff could not recover unless he proved wilful and wanton negligence against defendant. The transcript shows (T. 107) that the trial judge charged as follows: "For plaintiff to recover in this case it would be necessary for you to find that defendant is guilty of gross negligence proximately causing defendant's injuries. Gross negligence is equivalent to failure to exercise even slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act of omission respecting legal duties of an aggravating character as distinguished from a mere failure to exercise ordinary care. It is very great negligence or the absence of slight diligence or the want of even scant care." (Emphasis supplied). In Frye v. Pyron,
Further, the present rule is that if the trial judge substantially covers the requested charge, though not in the exact language requested, no error can be successfully assigned as to such failure to charge. Hardwick v. Price,
If you should find the plaintiff could have avoided the injury to himself by the exercise of ordinary diligence he cannot recover. If you find from the evidence that the plaintiff in this case was himself guilty of lack of ordinary care in riding on the front of defendant's automobile at the time of the accident, he cannot recover for injuries sustained by the ordinary negligence of defendant if you find that defendant was negligent." The foregoing language amply covers the proposition advanced by defendant in his request to charge.
9. Complaint is made that the trial judge gave to the jury two standards of negligence, which was confusing. But a reading of the entire charge shows, that while the trial judge charged as to and defined the various degrees of negligence, it was made very plain to the jury that plaintiff could not recover unless he proved gross negligence against defendant. "A charge, torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall . . ." Brown v. Mathews,
Appellant urges that Gaines v. Wolcott,
Thus, it is seen that this type of case is decided finally, not upon whether the injured party is committing an illegal act, but upon whether his conduct is negligent and is the proximate cause of the injury. We repeat that the jury here could have determined that the rabbit hunting was at an end and now a game of trying to throw plaintiff from the car was in operation.
1973
Sponsored links
This document cites
- Supreme Court of Georgia - STULL v. THE STATE (two cases)., 230 Ga. 99, 196 S.E.2.d 7 (1972)
- Supreme Court of Georgia - WOLCOTT v. GAINES., 225 Ga. 373, 169 S.E.2.d 165 (1969)
- Supreme Court of Georgia - ADAMS et al. v. ADAMS., 218 Ga. 67, 126 S.E.2.d 769 (1962)
- Georgia Court Of Appeals - Sharp v. Thomas., 125 Ga. App. 137, 186 S.E.2d 589 (1971)
- Georgia Court Of Appeals - BOATRIGHT v. RICH\'S, INC., 62321#121 Ga. App. 121, 62321#173 SE2d 232 (1970)
See other documents that cite the same legislation
