Benson v. Hunter

Court of Appeals of Georgia

Benson v. Hunter

360 S.E.2d 612, 184 Ga. App. 40, 1987 Ga. App. LEXIS 2147

CourtCourt of Appeals of Georgia

DecidedJuly 14, 1987

Docket74298

StatusPublished

Cited by7 cases

This text of 360 S.E.2d 612 (Benson v. Hunter) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Benson v. Hunter, 360 S.E.2d 612, 184 Ga. App. 40, 1987 Ga. App. LEXIS 2147 (Ga. Ct. App. 1987).

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Opinions

Carley, Judge.

Appellee-plaintiff sued to recover for injuries she sustained in a collision between her automobile and one which was owned by appellant-defendant Benson and which was being operated by appellant-defendant Davis. Appellants appeal from the judgment entered on the jury verdict in favor of appellee.

Appellants’ sole enumeration is that the trial court erroneously failed to give their requested charge on legal accident. This issue was raised and discussed in the very recent decision of this Court in Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (359 SE2d 351) (1987). Although, under Rule 35 (b) of the Rules of this Court, that decision is only a physical precedent as to its resolution of the “legal accident” issue, that resolution is persuasive and the reasoning thereof is equally applicable to the case at bar: “There is considerable question whether [the evidence in this case] would be sufficient to authorize a charge on legal accident. ‘It has been said that “the better course would appear to be to omit the instruction except in those instances in which quite plainly it is peculiarly appropriate.” [Cit.]’ Garrett v. Brannen, 164 Ga. App. 10, 11 (1) (296 SE2d 205) (1982), overruled on other grounds Chadwick v. Miller, 169 Ga. App. 338, 344 (1) (312 SE2d 835) (1983). However, assuming without deciding that the evidentiary support for a charge on legal accident was present and that it would not have been error had such a charge been given, it does not necessarily follow that the failure to give a requested charge on that principle constitutes reversible error. ‘It is not necessary to give the exact language of the request when the same principles are fairly given to the jury in the general charge. [Cit.]’ [Cit.] ‘[F]or purposes of jury instruction, some jurisdictions have totally discarded the principle of accident. This result is reached on the ground that “a statement of the rule in instructions to a jury merely restates a phase of the law of negligence, is unnecessary, serves no useful purpose, overemphasizes the defendant’s case, is misleading and confusing, does not necessarily preclude fault or negligence, and is susceptible to different meanings and constructions.” [Cits.] Although Georgia has not discarded accident as a proper subject for jury instructions, it has long been recognized that it is not a separate defense but is merely “elaborative” of general principles of negligence law. [Cit.]. . . . [T]hat juries are misled and confused by the defense of accident has likewise been recognized.’ (Emphasis supplied.) Chadwick v. Miller, supra at 342. The record in this case shows that the trial court gave a full and fair charge on the general principles of negligence law, instructing the jury that [appellants] could not be found liable in the absence of [Davis’] negligence. In [41]*41view of the charge as given by the trial court, the failure to give the additional requested charge on the merely ‘elaborative’ defense of legal accident was, at most, harmless error.” Glenn McClendon Trucking Co. v. Williams, supra at 511 (5).

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Pope and Benham, JJ., concur. Deen, P. J., Banke, P. J., Sognier and Beasley, JJ., dissent.

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Carley, Judge.

Appellee-plaintiff sued to recover for injuries she sustained in a collision between her automobile and one which was owned by appellant-defendant Benson and which was being operated by appellant-defendant Davis. Appellants appeal from the judgment entered on the jury verdict in favor of appellee.

Appellants’ sole enumeration is that the trial court erroneously failed to give their requested charge on legal accident. This issue was raised and discussed in the very recent decision of this Court in Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (359 SE2d 351) (1987). Although, under Rule 35 (b) of the Rules of this Court, that decision is only a physical precedent as to its resolution of the “legal accident” issue, that resolution is persuasive and the reasoning thereof is equally applicable to the case at bar: “There is considerable question whether [the evidence in this case] would be sufficient to authorize a charge on legal accident. ‘It has been said that “the better course would appear to be to omit the instruction except in those instances in which quite plainly it is peculiarly appropriate.” [Cit.]’ Garrett v. Brannen, 164 Ga. App. 10, 11 (1) (296 SE2d 205) (1982), overruled on other grounds Chadwick v. Miller, 169 Ga. App. 338, 344 (1) (312 SE2d 835) (1983). However, assuming without deciding that the evidentiary support for a charge on legal accident was present and that it would not have been error had such a charge been given, it does not necessarily follow that the failure to give a requested charge on that principle constitutes reversible error. ‘It is not necessary to give the exact language of the request when the same principles are fairly given to the jury in the general charge. [Cit.]’ [Cit.] ‘[F]or purposes of jury instruction, some jurisdictions have totally discarded the principle of accident. This result is reached on the ground that “a statement of the rule in instructions to a jury merely restates a phase of the law of negligence, is unnecessary, serves no useful purpose, overemphasizes the defendant’s case, is misleading and confusing, does not necessarily preclude fault or negligence, and is susceptible to different meanings and constructions.” [Cits.] Although Georgia has not discarded accident as a proper subject for jury instructions, it has long been recognized that it is not a separate defense but is merely “elaborative” of general principles of negligence law. [Cit.]. . . . [T]hat juries are misled and confused by the defense of accident has likewise been recognized.’ (Emphasis supplied.) Chadwick v. Miller, supra at 342. The record in this case shows that the trial court gave a full and fair charge on the general principles of negligence law, instructing the jury that [appellants] could not be found liable in the absence of [Davis’] negligence. In [41]*41view of the charge as given by the trial court, the failure to give the additional requested charge on the merely ‘elaborative’ defense of legal accident was, at most, harmless error.” Glenn McClendon Trucking Co. v. Williams, supra at 511 (5).

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Pope and Benham, JJ., concur. Deen, P. J., Banke, P. J., Sognier and Beasley, JJ., dissent.

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360 S.E.2d 612, 184 Ga. App. 40, 1987 Ga. App. LEXIS 2147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benson-v-hunter-gactapp-1987.

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