Dowis v. McCurdy

136 S.E.2d 389, 109 Ga. App. 488, 1964 Ga. App. LEXIS 896

• Court: Court of Appeals of Georgia
• Decided: April 2, 1964
• Docket: 40283, 40285
• Status: Published

Opinions

Nichols, Presiding Judge.

The grant or refusal of a continuance or postponement of a case is ordinarily within the discretion of the trial court, and the authority of this court is limited to a decision of whether that discretion was abused. In such event the plaintiff in error must allege and show not only that an abuse of discretion occurred but that it resulted in injury to him, since error, to be reversible, must be harmful. An assignment of error which fails to allege that the failure to grant a continuance was injurious is insufficient for consideration. Aiken v. Richardson, 85 Ga. App. 180 (3) (68 SE2d 228); Jones v. State, 214 Ga. (108 SE2d 327). It appears from the first special ground of the motion for new trial that defendants’ counsel had instructed the defendants that he would call them when their presence in court was needed; that due to the settlement of two cases on the calendar immediately preceding theirs this case was called unexpectedly for trial; that counsel requested time to notify the defendants but the court refused to wait more than fifteen minutes, and that when the defendants arrived the jury had been selected for the trial of the case. It is contended that this action on the part of the court deprived the defendants of their right to consult with counsel in the striking and selection of the jury, but there is no averment that had they been present any changes in the jury as selected would have been made.

It does not appear that counsel's action in excusing his clients from their presence in court until called was done by direction of or with the approval of the court. If that had been the circumstances we have no doubt that the court might have felt that indulgence of further delay would have been appropriate. But counsel must know that the operation of the court in a regular and expeditious manner cannot be interfered with by his independent, unilateral decision as to whether a client should remain in court and await the call of his case. When he does that he, and consequently his client, assumes the risk of the unexpected and early reaching or call of the case by reason of a settlement, dismissal or rapid disposition of cases ahead of it on the calendar, etc. Diligence, both of counsel and of parties litigant, is necessary if courts are to function in an orderly and proper manner. Yigilantibus et non dormientibus jura subveniunt.

The excerpt from the court’s instruction to the jury excepted to in special ground 5 concluded a charge on expert testimony with the words, “You are not bound or concluded by the testimony of any witness, expert or otherwise.” This charge was taken verbatim from that approved in Georgia Power Co. v. Chapman, 46 Ga. App. 582, 584 (168 SE 131) and Parks v. Fuller, 100 Ga. App. 463, 475 (111 SE2d 755). Judge Jenkins, in the former case, construed the language as an instruction that the jury were not bound to accept the testimony of any particular witness but not as amounting to an instruction that the testimony of all the witnesses might be disregarded. We accede hesitantly to this interpretation in the face of precedent, but feel the instruction would be on much sounder footing if the charge were reworded so as to make it applicable to opinion testimony only. See Western &c. R. Co. v. Beason, 112 Ga. 553 (37 SE 863); Holton v. Mercer, 195 Ga. 47 (23 SE2d 166); Myers v. Phillips, 197 Ga. 536 (29 SE2d 700).

A dissent having developed after the filing of the motion to rehear in this case as originally written, special ground 6 of the amended motion for new trial and the law relating thereto have been re-evaluated by all three divisions of this court. In this special ground the defendants except to the italicized portion of the following excerpt from the court’s charge: “The law provides that if the plaintiff recovers in either case he or she must recover upon' some one or more of the allegations of negligence or negligence per se which the court instructed you to consider. Plaintiff, however, in order to recover is not required to prove every allegation of negligence which you are authorized to consider. If the plaintiff in either case proves by the evidence that the defendant committed one or more of the allegations of negligence set out in said case this would be sufficient in so far as the proof of negligence is concerned.”

An instruction that proof of any of the allegations of negligence “would be sufficient in so far as the proof of negligence is concerned” is not so misleading or confusing to the jury in this case as to justify the granting of a new trial. Such instruction, without more, is perhaps not as explicit as it could be, and it might have been better understood by the jury had the trial court added the words in the way and manner therein alleged so that such excerpt of the charge would read that proof of any of the allegations of negligence in the way and manner therein alleged would be sufficient in so far as the proof of negligence is concerned. Such charge then would clearly have been good; not misleading nor subject to the criticism lodged against it to the effect that it erroneously eliminated the necessity for the jury to determine, not only that the alleged act or acts of negligence were committed, but also that they or it were negligently committed.

We do not agree, however, that the court erred or that the jury was confused or misled by the court’s failure to use such suggested additional words. If the jury found by a preponderance of the evidence that the defendants committed any one or more of the alleged acts of negligence (whether such specifications of negligence be ordinary negligence or negligence per se) in the way and manner alleged in the plaintiff’s petition that necessarily and indubitably meant that the act or. acts .were negligently committed for the reason that in the specifications of negligence charged against the defendants the way and manner in which the defendants are charged, with, having been negligent is particularized and spelled out. -The specifications of negligence alleged in the plaintiff’s petition are as follows:

. “(a) Because the said Mrs. Ferd Dowis failed to keep a sharp and vigilant lookout ahead;

“(b) Because the said Mrs. .Ferd Dowis did not keep and have her husband’s said Chevrolet automobile under her direct and immediate control; ■

. “ (c) Because the said Mrs. Ferd Dowis failed to- have and keep the speed- of said automobile under the proper control, and have the same under control necessary to avoid colliding with your petitioner, in violation of the laws of Georgia as embodied in Georgia Annotated Code Section 68-1626, subsection (a).thereof, which was negligence per se; . .

“ (d) Because the. said. Mrs. Ferd Dowis. failed to drive the said Chevrolet automobile at a speed and in a manner that was reasonable and prudent under the existing and apparent conditions, and taking into account the provisions of the laws, of the State, of Georgia, as embodied in Georgia Annotated Code Section 68-1626, subsection (a) thereof, which was.negligence per se;-

“(e) Because the said Mrs. Ferd Dowis did follow the said Chevrolet automobile which your petitioner was driving more closely than was prudent and reasonable, having due regard for the speed of such vehicles and the traffic upon and conditions of said highway, in violation of the laws of the State, of Georgia, as embodied in Georgia Code Annotated, Section 68-1641, subsection, (a) thereof, which is negligence per se.”.

Proof that the defendants had committed any one or -more of the above quoted specifications of negligence, in the way and manner charged against them in the particular specification then would' he sufficient in so far as the proof of negligence is concerned because in each specification of negligence the defendants are charged with the failure to exercise due care under the conditions and circumstances prevailing at the time which is, in fact, ordinary negligence.

There were no specifications of negligence per se here except those provided by Code Ann. §§ 68-1626 (a) and 68-1641 (a), and while a violation of either of these sections has been called negligence per se, before a negligent act can be found to be negligence per se a finding of ordinary negligence must in reality first be made. Strickland v. Whatley, 142 Ga. 802 (1) (83 SE 856); Teague v. Keith, 214 Ga. 853 (6) (108 SE2d 489); Grayson v. Yarbrough, 103 Ga. App. 243, 247 (119 SE2d 41). What the Supreme Court actually held in Strickland v. Whatley and Teague v. Keith, supra, was that the General Assembly had made ordinary negligence negligence as a matter of law, and the Supreme Court, as well as this court has since, of necessity, adhered to and followed this ruling.

It would.be far less complicated and certainly much easier understood, from the jury’s point of view, if all distinctions and differentiations were eliminated once and for all time where the negligence per se is based upon ordinary negligence, and thereby making the specifications of negligence, as set out in the pleadings, the sole standard by which the proof is measured in determining whether or- not such negligence has been established. Where, as in this case, one of the specifications of negligence was that the defendant’s automobile was following the vehicle which plaintiff was driving more closely than was prudent and reasonable, having due regard for the speed of the vehicles and the traffic and conditions upon the highway, etc., and the proof showed such to be the case, then, the defendant’s negligence as to this particular specification of negligence has been established. Another example would be where the specification of negligence was based solely upon ordinary negligence and the proof showed such to be the casé, then, again, the negligence as to this specification would have been established. However, if one of the specifications of negligence be that the defendant was operating his motor vehicle in excess of the lawful rate of speed, a definite act that is prohibited by law and negligence per se, the above rules would not apply, and it would only be necessary to prove a violation of the statute without having to further determine if such violation constituted negligence.

In each of the three above examples it is always a question for the jury to determine whether the specification of negligence has been proved;—if proved to the jury’s satisfaction, then the next step is for the jury to determine whether such negligence was the proximate cause of the injuries sustained. Also in each of the above examples when and if the jury determines that the specification of negligence has been proved, whether it be an act which is prohibited by law (negligence per se), or an allegation charging the failure to use due care (ordinary negligence), they stand on the same footing—there is no legal difference between ordinary negligence and negligence per se. And where, as was done in this case, the court clearly instructed the jury as to both ordinary negligence and negligence per se; defined negligence in the case as the failure to exercise ordinary diligence, and stated that it was a question for the jury to determine whether or not the defendant was negligent, and whether the negligence, if any, proximately caused the injury, the charge as a whole authorized no recovery for the plaintiff until after a determination by the jury that the defendants were in fact negligent in at least one of the ways charged in the particular specification of negligence.

The rule stated by the Supreme Court in Alabama Midland R. Co. v. Guilford, 114 Ga. 627 (40 SE 794) is distinguishable from this case as was the case of Atlantic C. L. R. Co. v. Moore, 8 Ga. App. 185 (68 SE 875) because in this case there was no allegation of negligence that would not authorize a recovery if proved.

In Central R. & Bkg. Co. v. Neighbors, 83 Ga. 444 (1) (10 SE 115) in answer to a smiliar complaint the Supreme Court held: “A charge that if plaintiff was directed by the yard-conductor to go in and make a coupling, and signalled the engineer to stop, and the engineer stopped, and plaintiff, in the exercise of ordinary care and diligence to avoid the injury, was proceeding to shift a coupling-pin from a lower to a higher bumper in order to make the coupling, and the engineer, without notice to him and negligently, came back, and plaintiff’s hand was caught and injured, he would be entitled to- recover,—was not an expression of opinion as to what acts of defendant would constitute negligence ... as they [jury] were afterwards instructed that if the engineer was not negligent in pushing the cars back, plaintiff could not recover.”

While ordinarily it is error for the trial judge to tell the jury what acts would or would not constitute negligence unless the acts have been declared by statute to be negligence, Davis v. Whitcomb, 30 Ga. App. 497, 498 (4) (118 SE 488), Watson v. Riggs, 79 Ga. App. 784 (4) (54 SE2d 323), Campbell v. Eubanks, 107 Ga. App. 527 (130 SE2d 832), Louisville &c. R. Co. v. Biggs, 141 Ga. 562 (81 SE 900), on the other hand, it is proper for the court to charge the jury on the principle that a plaintiff in a negligence action is entitled to recover upon proof of any one or more of the grounds of negligence stated in the petition. In Mayor &c. of Gainesville v. Hanes, 22 Ga. App. 589 (1), 592 (96 SE 349), a charge “I charge you that it is not necessary, in order to give the plaintiff the right to recover, that all of the grounds of negligence set out in the petition be proved—it would be sufficient for that purpose if any one or more of the grounds of negligence set out in the petition be sustained by the evidence,” (emphasis ours) was excepted to on the grounds that the charge was “erroneous because it withdrew from the consideration of the jury ‘what is and what is not negligence, and instructed them that each allegation of the allegations in the petition stated negligence.’ ” This court in holding that the charge was not erroneous for the reasons assigned, said: “When considered in connection with the whole charge, we do not think the jury could have put this construction upon it. The court was guarding the jury against basing a verdict on any negligence not alleged, and the charge, properly construed, was not that the jury could base a verdict on any act or omission of the city that was alleged, but that a verdict for the plaintiff could be based only on one or more of the acts alleged to be negligence, and shown to be such by the evidence.”

While it has many times been held “It is error for the court to instruct the jury that certain acts alleged as common-law negligence constitute such negligence, instead of leaving to the jury the determination of whether such facts do or do not constitute negligence. Watson v. Riggs, 79 Ga. App. 784 (54 SE2d 323); Johnson v. Wofford Oil Co., 42 Ga. App. 647 (157 SE 349). It is, however, proper to charge that the jury should determine whether the plaintiff, in the circumstances, was lacking in ordinary care in failing to do whatever the jury might find that he, as a person of ordinary prudence, was called on to do in the exercise of that degree of care to avoid injury. Randall Brothers v. Duckett, 53 Ga. App. 250 (185 SE 394). It does not appear here that the judge instructed the jury that any particular act or omission on the plaintiff’s part would constitute negligence, but rather he left it to the jury to determine this fact.” Wade v. Roberts, 89 Ga. App. 607, 609 (80SE2d 728). In the present case the judge was charging quantitatively: that is, how many allegations of negligence must be proved before there could be a recovery. He pointed out the several allegations of lack of care and the difference between them—some in violation of statute, others not. Then he said plaintiff was "not required to prove every allegation of negligence which you are authorized to consider. If [he] proves the defendant committed one or more of the allegations of negligence, this would be sufficient so far as proof of negligence is concerned.” It is our opinion that this charge falls within the ruling of Mayor &c. of Gainesville v. Hanes, 22 Ga. App. 589, supra, and Central R. & Bkg. Co. v. Neighbors, 83 Ga. 444, supra.

No harmful error was shown by this excerpt from the court’s charge.

“In passing on the general grounds of a motion for new trial, this court passes not on the weight but on the sufficiency of the evidence.” Troy v. Wright Body Works, Inc., 109 Ga. App. 346 (136 SE2d 197), and cases cited. Suffice it to say there was sufficient evidence to authorize the verdict and the trial court did not err in overruling defendant’s motion for new trial.

Judgment affirmed.

Felton, C. J., Frankum, Russell and Pannell, JJ., concur. Bell, P. J., Jordan, Hall and Eberhardt, JJ., dissent.