Puckett v. Kelly

99 S.E.2d 691, 96 Ga. App. 225, 1957 Ga. App. LEXIS 547
CourtCourt of Appeals of Georgia
DecidedJuly 11, 1957
Docket36792
StatusPublished

This text of 99 S.E.2d 691 (Puckett v. Kelly) 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
Puckett v. Kelly, 99 S.E.2d 691, 96 Ga. App. 225, 1957 Ga. App. LEXIS 547 (Ga. Ct. App. 1957).

Opinion

Gardner, P. J.

1. The court did not err in overruling the general demurrer of the Rome Provision Company.

2. Special ground 1 assigns error because it is alleged that the court erred in charging the jury as follows: “Now the defendant comes into court and each of them, and files their plea and answer and denies that they are liable to the plaintiff in any sum whatsoever. The defendants contend that the defendant Puckett was not negligent as alleged in the plaintiff’s petition. They contend that he was at the time of the alleged incident in the exercise of ordinary care, and that he nor either of the defendants are responsible to the plaintiff for any injuries he claims to have sustained and that they are not liable to him in any amount.

“The allegations set forth in the petition of plaintiff together with the plea and answer of the defendant as amended constitute [235]*235the written contentions of the parties. These are the issues stated briefly for you to determine. You will have out before you the pleadings that I have referred to here, and I charge you now that the pleadings are not evidence and have no probative value. That is, they prove nothing except where you find an allegation in one which is admitted in the other, you will take such admitted allegations as being true without requiring proof as to such admitted allegations. You are authorized and instructed to read these papers as often as you like for a more specific elaboration of the contentions of the parties and of the case which you arc to decide.

“Now, I have thus submitted to you the contentions of the plaintiff on the one hand and the contentions of the defendant on the other briefly upon the issues as to whether or not the plaintiff or the defendant is entitled to have and receive a verdict at your hands.

“You will not take the statement on the paid of the court of the contentions of the parties as having any evidentiary force or value whatsoever. I have simply recited to you the contentions of the plaintiff and the contentions of the defendant as applicable to the evidence and the law in the case.”

Movants aver that such charge was erroneous and injurious to them jointly and severally because it failed to set forth the contentions of the movants.

Counsel for the defendants contend that the charge of the court erroneously excluded from the jury the defenses of contributory and comparative negligence. Counsel states that where a trial court in a charge makes a reference to the pleadings which the jury will have out with them, this is usually a sufficient statement of the contentions, but contends that the trial court took this case out of that category by adding the following words: “I have simply recited to you the contentions of the plaintiff and the contentions of the defendant as applicable to the evidence and law in the case." Counsel cites in support of this contention Hightower v. Ansley, 126 Ga. 8 (6) (54 S. E. 939, 7 Ann. Cas. 927) and Potts v. Reconstruction Finance Corp., 76 Ga. App. 796 (47 S. E. 2d 178). We have read the full charge of the court in those cases and compared the charges there with the charge [236]*236in the instant case and find that the charge in the instant case covers the evidence and the pleadings thoroughly, and the two cases cited by counsel for the defendants are not binding. In Haslerig v. Watson, 205 Ga. 668 (5) (54 S. E. 2d 413) the Supreme Court said: “An assignment of error based upon a particular excerpt from the charge of the court, complaining because therein the court omitted certain contentions of the complaining party, shows no ground for reversal, where the charge as a whole fairly states the contentions of the parties and further instructs the jury that the pleadings will be out with them, and that the jury can refer thereto in order to ascertain the contentions of the parties.” This special ground is not meritorious.

3. Special ground 3 assigns error because it is alleged that the court erred in charging the jury as follows: “I further charge you gentlemen that under the law of this State no person shall drive a vehicle on a street or highway at a speed greater than is reasonable or prudent under the conditions and having a regard to the actual or potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on the highway in compliance with the legal requirements-and the duty of all persons to use due care.

"I charge you further that the driver of every vehicle shall, when a special hazard exists with respect to pedestrians or other traffic, or by reason of weather or highway conditions, drive at an appropriate or reduced speed so as to avoid colliding with other vehicles or pedestrians using the highway.” It is contended that this charge imposed on the defendants a greater duty than the law requires. Counsel argues that Code (Ann.) § 68-1626 when presented to the jury without further explanation or qualification is not sufficient to enlighten the jury so that they may determine the matter presented to them; that the qualifications imposed by isolated statements in Code sections are understood by the bench and bar but the jury is not supposed to know any law except that which is given to them in charge by the trial court. In Moody v. Threlkeld, 13 Ga. 55 (7) the Supreme Court said: “Courts, in construing statutes . . . must have some respect to the substance, and not adhere too closely to the letter.” [237]*237Counsel also cites Lucas v. Smith, 201 Ga. 834 (41 S. E. 2d 527) and A. C. L. R. Co. v. Canty, 12 Ga. App. 411 (77 S. E. 659) in support of this contention. It is our opinion that these cases are not authority for reversal for the case at bar but rather that this case is determined by the ruling in Alfriend v. Fox, 124 Ga. 563 (1) (52 S. E. 925) wherein the following is held: “When a charge correctly sets forth a rule of law, it is not rendered erroneous merely for the reason that the rule is not stated in the exact language of the Code.” See also Alabama Great Southern R. Co. v. McBryar, 65 Ga. App. 153 (15 S. E. 2d 563), Dyer v. State, 71 Ga. App, 41 (29 S. E. 2d 922), and City Council of Augusta v. Tharpe, 113 Ga. 152 (2) (38 S. E. 389). This special ground shows no cause for reversal.

4. Special ground 4 assigns error because it is alleged the court erred in charging the jury as follows: “I charge you that if you determine from a consideration of the evidence and under the rules of law as given you in charge by the court that the defendant has violated one or more of the State’s statutes about which I have just charged you, the defendant is guilty of negligence per se; that is to say, negligence in itself, negligence of itself, negligence as a matter of law.

“Whether or not the plaintiff has shown that the defendant Puckett as agent of the defendant, Rome Provision Company, has violated one or more of the statutes referred to by the court in this charge is a question of fact for the jury to determine under the rules of law given you.

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Moody v. Threlkeld
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38 S.E. 839 (Supreme Court of Georgia, 1901)
Morrison v. Dickey
46 S.E. 863 (Supreme Court of Georgia, 1904)
Alfriend v. Fox
52 S.E. 925 (Supreme Court of Georgia, 1905)
Atlantic Coast Line Railroad v. Taylor
54 S.E. 622 (Supreme Court of Georgia, 1906)
Hightower v. Ansley
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Bluebook (online)
99 S.E.2d 691, 96 Ga. App. 225, 1957 Ga. App. LEXIS 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/puckett-v-kelly-gactapp-1957.