Ovens v. Claxton Carriage & Hardware Co.

Court of Appeals of Georgia

Ovens v. Claxton Carriage & Hardware Co.

100 S.E. 640, 24 Ga. App. 224, 1919 Ga. App. LEXIS 510

CourtCourt of Appeals of Georgia

DecidedOctober 9, 1919

Docket10375

StatusPublished

This text of 100 S.E. 640 (Ovens v. Claxton Carriage & Hardware Co.) 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

Ovens v. Claxton Carriage & Hardware Co., 100 S.E. 640, 24 Ga. App. 224, 1919 Ga. App. LEXIS 510 (Ga. Ct. App. 1919).

Pincite

Opinion

Luke, J.

1. The court did not err in sustaining the general demurrer of the City of Claxton and in dismissing the suit as to the city as an alleged joint tort-feasor, the petition not showing a defect in the condition of the streets to have been the proximate cause of the alleged injury.

2. Failure to charge the jury on the theory of accident was not error, in view of what is said in the note of the trial judge to the bill of exceptions, as follows: “In connection with the above certificate to the bill of exceptions, I desire to say that this is the second trial; that I granted a new trial on the first motion for new trial to a large extent upon the ground of the motion that the court erred in giving in charge the law of accident. That was made one of the particular grounds of the amended motion, and, on the idea that the question of accident was not involved in the oase, I granted the first new trial, the plaintiff’s attorney contending that there was no question of accident in the case. On the last trial counsel for the defendant argued to the jury the question of accident, without any objection on the part of counsel for the plaintiff, and qounsel for the plaintiff having full opportunity to make his argument to the jury or to call the attention of the court [226]*226to that feature of the case, but failed to do so, and on this second trial the court declined to make any charge on the question of accident because the court didn’t believe there was any evidence to authorize the question of accident, and did not think it was proper to consider the question at all. The court didn’t think it was proper to charge the theory of accident, even in the negative, when the court had already granted a new trial on the ground that accident was not involved.”

3. The charge of the court submitted to the jury fairly and fully the contentions of the parties, and, when read in its entirety, is not subject to the criticisms urged in the motion for a new trial. The evidence authorized the verdict, which has the approval of the trial judge, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworih, J., concur.

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Luke, J.

1. The court did not err in sustaining the general demurrer of the City of Claxton and in dismissing the suit as to the city as an alleged joint tort-feasor, the petition not showing a defect in the condition of the streets to have been the proximate cause of the alleged injury.

2. Failure to charge the jury on the theory of accident was not error, in view of what is said in the note of the trial judge to the bill of exceptions, as follows: “In connection with the above certificate to the bill of exceptions, I desire to say that this is the second trial; that I granted a new trial on the first motion for new trial to a large extent upon the ground of the motion that the court erred in giving in charge the law of accident. That was made one of the particular grounds of the amended motion, and, on the idea that the question of accident was not involved in the oase, I granted the first new trial, the plaintiff’s attorney contending that there was no question of accident in the case. On the last trial counsel for the defendant argued to the jury the question of accident, without any objection on the part of counsel for the plaintiff, and qounsel for the plaintiff having full opportunity to make his argument to the jury or to call the attention of the court [226]*226to that feature of the case, but failed to do so, and on this second trial the court declined to make any charge on the question of accident because the court didn’t believe there was any evidence to authorize the question of accident, and did not think it was proper to consider the question at all. The court didn’t think it was proper to charge the theory of accident, even in the negative, when the court had already granted a new trial on the ground that accident was not involved.”

3. The charge of the court submitted to the jury fairly and fully the contentions of the parties, and, when read in its entirety, is not subject to the criticisms urged in the motion for a new trial. The evidence authorized the verdict, which has the approval of the trial judge, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworih, J., concur.

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Bluebook (online)

100 S.E. 640, 24 Ga. App. 224, 1919 Ga. App. LEXIS 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ovens-v-claxton-carriage-hardware-co-gactapp-1919.