King v. Ellis

Court of Appeals of Georgia

King v. Ellis

121 S.E.2d 815, 104 Ga. App. 335, 1961 Ga. App. LEXIS 676

CourtCourt of Appeals of Georgia

DecidedSeptember 6, 1961

Docket38974

StatusPublished

Cited by7 cases

This text of 121 S.E.2d 815 (King v. Ellis) 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.

Bluebook

King v. Ellis, 121 S.E.2d 815, 104 Ga. App. 335, 1961 Ga. App. LEXIS 676 (Ga. Ct. App. 1961).

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Opinion

Felton, Chief Judge.

The evidence adduced at the trial is ample to support the verdict and judgment. The general-grounds are without merit.

Special ground 4 of the plaintiff’s motion for new trial assigns error on the court’s failure to charge three propositions which were tendered to the court by a timely, written request. Paragraph 2 of the requested charge was as follows: “If the highway is wet and slippery by reason of falling rain and the condition of the highway is such that driving a vehicle at a certain speed is likely to cause such vehicle to- skid upon the application of its brakes and crash into cars moving in the opposite direction, that such rate of speed would be unlawful.” (Italics ours). The pleadings and the evidence show that there was ice on the pavement, not “falling rain,” as the plaintiff’s request stated, and also that the automobiles were moving in the same direction, rather than “in the opposite direction.” “A request to- charge the jury, directed to the trial judge, submitted in writing before the retirement of the- jury, must be entirely correct and accurate; it must be adjusted to the pleadings, the law, and the evidence in the case; it must not be argumentative ; and it must not seek an expression of opinion on the part of the trial judge.” New York Life Ins. Co. v. Thompson, 50 Ga. App. 413 (1) (178 SE 389); McKinney v. Woodard, 94 Ga. App. 340 (1) (94SE2d 620); Childers v. Ackerman Const. Co., 211 Ga. 350 (1) (86 SE2d 227). The request was not adjusted to the pleadings and the evidence in the case, as shown above, hence the refusal to charge the- requested proposition was not error. Whether or not the other two paragraphs of the requested charge are correct and applicable is immaterial. “Where a series of propositions are presented in bloc in a single request to charge, the court is not required to give them or any part of them, if any one of them is erroneous or inapplicable to the case on trial.” Western Union Tel. Co. v. Owens, 23 Ga. App. 169 (5) (98 SE 116); Mayor &c. of Savannah v. Centennial Mill Co., 46 Ga. App. 725 (1) (169 SE 40); Shippey *337 Bros. White v. Owens, 17 Ga. App. 127 (3), 130 (86 SE 407) ; Davis v. Guffey, 196 Ga. 816, 818 (27 SE2d 689); Thompson v. O’Connor, 115 Ga. 120 (5), 123 (41 SE 242).

The request to charge not being entirely correct and the general grounds being without merit, the court did not err in its judgment denying the plaintiff’s motion for new trial.

Judgment affirmed.

Beil and Hall, JJ., concur.

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Felton, Chief Judge.

The evidence adduced at the trial is ample to support the verdict and judgment. The general-grounds are without merit.

Special ground 4 of the plaintiff’s motion for new trial assigns error on the court’s failure to charge three propositions which were tendered to the court by a timely, written request. Paragraph 2 of the requested charge was as follows: “If the highway is wet and slippery by reason of falling rain and the condition of the highway is such that driving a vehicle at a certain speed is likely to cause such vehicle to- skid upon the application of its brakes and crash into cars moving in the opposite direction, that such rate of speed would be unlawful.” (Italics ours). The pleadings and the evidence show that there was ice on the pavement, not “falling rain,” as the plaintiff’s request stated, and also that the automobiles were moving in the same direction, rather than “in the opposite direction.” “A request to- charge the jury, directed to the trial judge, submitted in writing before the retirement of the- jury, must be entirely correct and accurate; it must be adjusted to the pleadings, the law, and the evidence in the case; it must not be argumentative ; and it must not seek an expression of opinion on the part of the trial judge.” New York Life Ins. Co. v. Thompson, 50 Ga. App. 413 (1) (178 SE 389); McKinney v. Woodard, 94 Ga. App. 340 (1) (94SE2d 620); Childers v. Ackerman Const. Co., 211 Ga. 350 (1) (86 SE2d 227). The request was not adjusted to the pleadings and the evidence in the case, as shown above, hence the refusal to charge the- requested proposition was not error. Whether or not the other two paragraphs of the requested charge are correct and applicable is immaterial. “Where a series of propositions are presented in bloc in a single request to charge, the court is not required to give them or any part of them, if any one of them is erroneous or inapplicable to the case on trial.” Western Union Tel. Co. v. Owens, 23 Ga. App. 169 (5) (98 SE 116); Mayor &c. of Savannah v. Centennial Mill Co., 46 Ga. App. 725 (1) (169 SE 40); Shippey *337 Bros. White v. Owens, 17 Ga. App. 127 (3), 130 (86 SE 407) ; Davis v. Guffey, 196 Ga. 816, 818 (27 SE2d 689); Thompson v. O’Connor, 115 Ga. 120 (5), 123 (41 SE 242).

The request to charge not being entirely correct and the general grounds being without merit, the court did not err in its judgment denying the plaintiff’s motion for new trial.

Judgment affirmed.

Beil and Hall, JJ., concur.

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Bluebook (online)

121 S.E.2d 815, 104 Ga. App. 335, 1961 Ga. App. LEXIS 676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-ellis-gactapp-1961.

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