Opinion
32408, 32411, 32409, 32412.
DECIDED APRIL 20, 1949.
Damages; from Fulton Superior Court — Judge Pomeroy. December 13, 1948.
Gambrell, Harlan Barwick, James C. Hill, for Central Truckaway System.
Hewlett Dennis, T. F. Bowden, Douglas Dennis, for Lynn.
Matthews, Long Moore, for Harrigan.
1. It is not error for the court, in charging the jury, merely to state correctly the contentions made by the allegations of the petition, even though some of the contentions may not be supported by the evidence. See Barbre v. Scott, 75 Ga. App. 524, 525 (7) ( 43 S.E.2d 760).
2. Where two defendants have been joined in a tort action, based on joint and several liability, it is error for the trial judge to stress and particularize in his charge the degree of negligence necessary to make a cause of action against one of the defendants without mentioning in connection therewith the other defendant, in such way as to give the jury the impression that a more favorable rule applies to the former than to the latter, when in fact the same rule applies to both. In the instant case the charge assigned as error was not prejudicial to the complaining defendant.
3. Where two persons commit separate acts of negligence amounting to concurrent causes which operate directly in bringing about an injury to another, there can be a recovery against either one or both of the tortfeasors, and the mere fact that the injury would not have been sustained had only one of the acts of negligence occurred does not eliminate the other act as constituting a part of the proximate cause; and a charge of the trial court substantially stating this rule, as in the instant case, is without error.
4. In an action by a husband for the loss of future services of his wife, it is error to fail to charge the jury that such future services must be reduced to present cash value. See Central of Ga. Ry. Co. v. Keating, 45 Ga. App. 811 ( 165 S.E. 873).
5. The opinions of experts on any question of science, skill, trade or like questions are admissible, and the weight and credit to be given such testimony is for the jury. See Code, § 38-1710; McDowell v. State, 78 Ga. App. 116 ( 50 S.E.2d, 633).
6. Special assignments of error under this division of the opinion are moot for the reasons there set forth.
7. Assignments of error dealt with in this division of the opinion are without merit for the reasons there stated.
8. Under the express provision of Code § 81-1409, dealing with the continuance of cases, on application of a party pleading surprise upon the filing of an amendment, the granting or refusing of such continuance is within the discretion of the court. This discretion was not abused in the instant case, where the opposite parties had approximately 3 weeks' notice of the facts set forth in the amendment.
DECIDED APRIL 20, 1949.
The defendants in error, Thomas Harrigan, and his wife Mary C. Harrigan, herein referred to as the plaintiffs, filed separate suits against the plaintiffs in error, Central Truckaway System Inc., Casualty Reciprocal Exchange and Rodney L. Lynn, herein referred to as the defendants, in the Superior Court of Fulton County.
The petitions allege substantially: that on October 8, 1946, the plaintiffs had been traveling in a Chrysler automobile belonging to and driven by Mary C. Harrigan, in a southerly direction on U.S. Highway No. 41, and had reached a point several miles south of Cartersville known as "Spring Park" where a service station and restaurant is located on the west side of the highway; that upon reaching this point, the car was driven on to the premises of the service station and restaurant in order to change drivers; that the plaintiff, Thomas Harrigan, walked to the rear of the car intending to re-enter on the driver's side; that the defendant Lynn was then parked in his automobile on the same premises further south than where the Harrigan car had stopped: that the defendant Lynn drove his automobile off these premises, turning to his left in a northerly direction, the reverse of that which he had been facing, onto the highway; that the trailer truck of the defendant, Central Truckaway System Inc., which was being operated by Charles Dalton, an agent engaged in the business of said defendant, was being driven at this time and place in a northerly direction at the rate of approximately 40 miles per hour; that it was raining and the asphalt pavement of the highway was wet and slippery; that the trailer truck of the defendant, Central Truckaway System Inc. collided with the automobile of the defendant Lynn, and thereafter careened to the left across the highway and into the car of the plaintiff, Mary C. Harrigan, knocking her car over a 25-foot embankment on the premises of the service station, and turning it over several times; that the car of Mary C. Harrigan was knocked into Thomas Harrigan as he was passing in the rear thereof resulting in certain injuries to him which are detailed in his petition; that his wife, Mary C. Harrigan, was sitting in the front seat of the car at the time of the collision, and she was injured in certain particulars which are detailed in both petitions.
Thomas Harrigan seeks to recover for pain and suffering, loss of earnings, and loss of services of his wife, including future loss of her services. Mary C. Harrigan seeks to recover for pain and suffering, and for the damage alleged to have been done to her automobile.
The acts of negligence charged in both petitions against the defendant Lynn are as follows: (a) in turning his car across the highway; (b) in driving across the left of the center of the highway; (c) in making a U-turn in the middle of the highway; (d) in driving into the path of the north-bound truck; (e) in failing to give any warning or signal of his intention to drive into the highway.
The acts of negligence charged against the defendant, Central Truckaway System Inc. are as follows: (a) in driving the truck into the car of the defendant Lynn; (b) in failing to stop the said truck before striking the defendant Lynn; (c) by failing to reduce speed and to allow the car of the defendant to proceed; (d) in failing to give any warning of its approach; (e) in driving its truck to the left of the center of the highway; (f) in driving its truck into the car of the petitioner; (g) in failing to stop its truck before striking the petitioner; (h) in failing to turn; its truck to the left or to the right to avoid striking the petitioner; (i) in driving its truck on the left side of the road; (j) in failing to warn the petitioner of the approach of its truck; (k) in driving its truck at a speed of 40 miles per hour, which rate of speed in view of the premises was not reasonable or safe with due regard for the width, grade, character, traffic, and common use of the highway at the time in question.
The petitions also allege that the defendant, Casualty Reciprocal Exchange, is an indemnity insurance company and has issued an insurance policy indemnifying the defendant, Central Truckaway System Inc., and it has filed the same with the Public Service Commission of Georgia as required by law.
The defendants, Central Truckaway System Inc. and Casualty Reciprocal Exchange filed joint answers, and the defendant, Rodney L. Lynn, filed separate answers to the petitions of each of the plaintiffs. All the defendants denied responsibility for the injuries and damages sustained by the plaintiffs, if any.
Construing the evidence in its light most favorable to support the verdicts, the jury trying the cases were authorized to find facts substantially as follows: that, after the plaintiff, Mary C. Harrigan, had driven her car onto the premises at "Spring Park," the defendant Lynn re-entered his car, which was parked some distance in front of and to the south of the Harrigan car, and started to circle to the left so as to drive under the shed of the service station, which was then back of where his car was parked, his object being to place his car out of the rain then falling; that in doing this the defendant Lynn drove back into the highway and was proceeding around about the middle thereof, partly on his left-hand side, in a northerly direction when he was overtaken by the truck of the defendant, Central Truckaway System Inc., being operated at a speed approximately 45 or 50 miles per hour down hill and on a sharp curve; that upon overtaking the Lynn car the truck side-swiped it in its effort to pass to its left, which put the truck along the left side of the highway; that upon side-swiping the Lynn car the truck proceeded to collide with the Harrigan car, knocking it some distance off the highway and turning it over several times; that the Harrigan car was knocked into the plaintiff, Thomas Harrigan, and turned over with the plaintiff, Mary C. Harrigan in it, injuring both in some of the ways alleged in their petitions.
The jury returned verdicts in favor of the plaintiff, Thomas Harrigan, for $6000 and in favor of the plaintiff, Mary C. Harrigan, for $10,000.
The defendants, Central Truckaway System Inc. and Casualty Reciprocal Exchange, joined in motions for new trials in both of the cases, which were later amended by adding special grounds. The defendant, Rodney Lynn, filed in each of the cases separate motions for a new trial, which were also amended by adding special grounds. These motions for a new trial as amended were overruled and the judgments are assigned as error.
The defendants in error amended the bill of exceptions in each of the cases under Code § 6-913, by adding additional parties as defendants in error, and these amendments are hereby allowed.
1. Special grounds 1, 2, and 3 of case No. 32408, special ground 3 of case No. 32409, special grounds 2, 3, and 4 of case No. 32411, and special ground 1 of case No. 32412, contend that the trial court erred in stating to the jury contentions of certain acts of negligence contained in the petitions, which statements it is insisted were unsupported by evidence. The only reference which the court made to the particular acts of negligence charged in the petitions, in the course of his charge to the jury, was the reading of all the acts of negligence charged to each of the defendants in the petitions, including the ones complained of in these special grounds. Elsewhere the court charged the jury as follows: "When you come to pass upon the question of whether or not the defendants were negligent, you will be confined to these specifications of negligence as set out in the petitions. You could not go outside and inquire whether or not the defendants were negligent in any other manner than as set forth in the petitions, the law being that, if the plaintiffs recover at all in these cases, it must be upon some one or more of the allegations of negligence as set forth in the petition." Again the court charged: "I instruct you gentlemen that neither Mr. nor Mrs. Harrigan would be entitled to recover any damages in these cases unless either the driver of the truck or the driver of the Packard automobile was guilty of some act of negligence as charged in their petitions, and unless some such negligent act proximately caused some injury to one or both of them." There was no request to withdraw or withhold from the jury any specification of negligence charged in the petitions which was not supported by evidence. In Barbre v. Scott, 75 Ga. App. 525 (7) ( 43 S.E.2d 760), this court held: "It is not error for the court, in charging the jury, merely to state correctly the contentions made by the allegations of the petition, even though some of the contentions may not be supported by the evidence." In that case there was a specific request to charge that certain allegations of negligence, being unsupported by the evidence, should not be considered by the jury. In the body of the decision, at the top of page 535 this court stated as follows: "Nor did the court err in refusing to give the request to charge, eliminating this ground of negligence from the consideration of the jury. To have instructed the jury as requested would have amounted to the direction of a verdict as to this allegation of negligence, and it is never error to refuse to direct a verdict." In this connection, see Western Atlantic R. Co. v. Gray, 172 Ga. 286 (10) ( 157 S.E. 482); Southern Grocery Stores v. Cain, 54 Ga. App. 48 (4) ( 187 S.E. 250); Lewis v. Tatum, 55 Ga. App. 24 (7) ( 189 S.E. 375). The trial court in the instant case charged the jury fully and correctly on the burden of proof, the preponderance of the evidence, and proximate cause. Nothing more need be added here to what this court has already said on this subject in division 7 of the decision in Barbre v. Scott, supra, at pages 534 and 535. See also the cases there cited. These assignments of error are without merit.
2. Special ground 4 of case No. 32408 and special ground 5 of case No. 32411 contend that the trial court erred in charging the jury as follows: "There is no dispute about the collision between the vehicles referred to in the petitions, but the real question which you are to determine as to the defendant Lynn in each case is this: has the plaintiff proved the negligence of the defendant Lynn by a preponderance of the evidence. Unless such negligence is proven by a preponderance of the evidence, there could be no recovery against either of the defendants. I instruct you gentlemen, that negligence on the part of a defendant cannot be assumed merely because of a collision from which followed injury and damage to plaintiff. The court instructs you that you cannot presume negligence in either one of these cases on the part of the defendant Lynn from the mere fact alone that there was a collision between the car which he was driving and the other vehicle described in the petition out in the highway, or from the fact that plaintiff, or either of them was injured." The principal reason this excerpt is contended to be error is that the judge emphasized to the jury what negligence it would be necessary for the plaintiffs to prove against the defendant Lynn, thus giving the jury the impression that they could find against the defendants, Central Truckaway System Inc. and Casualty Reciprocal Exchange, without proving the same degree of negligence against such defendants.
The record contains no explanation as to why the trial judge in the course of his charge thus made special reference to the defendant Lynn. It is, however, intimated in the brief of counsel for the plaintiffs that this resulted from requests filed on behalf of Lynn's counsel. Notwithstanding the cause, the practice is bad and does not meet with the approval of this court. It constitutes error and in some instances might be harmful and reversible, but in the instant case it appears to be harmless because the judge elsewhere in his charge made it clear that the defendants were governed by the same rules of law. Then too, the jury returned the same verdict against both defendants, which is itself some evidence that the defendants complaining here were not discriminated against by reason of this part of the charge. These assignments of error are without merit.
3. Special ground 5 of case No. 32408, special ground 4 of case No. 32409, special ground 6 of case No. 32411, and special ground 2 of case No. 32412, contend that the trial court, for the various reasons assigned therein, erred in charging the jury as follows: "I instruct you that where two concurrent causes operate directly in bringing about an injury, that there can be a recovery against either one or both of the respective parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred would not of itself operate as a defense, or eliminate the other act as constituting the proximate cause; if you find both acts of negligence contributed directly and concurrently to bringing about the injury, they together will constitute the proximate cause." The excerpt from the charge complained of is a substantially correct statement of the law and is not error for any of the reasons assigned. See Adams v. Jackson, 45 Ga. App. 860 ( 166 S.E. 258); McGinnis v. Shaw, 46 Ga. App. 248 (2) ( 167 S.E. 533); Tallman v. Green, 74 Ga. App. 731 ( 41 S.E.2d 339).
4. Special grounds 6 and 8 of case No. 32408 and special ground 1 of case No. 32409 contend that the trial court erred in failing to charge the jury that any recovery for future loss of the wife's services by the husband must be reduced to present cash value.
Paragraph 29 of the petition of Thomas Harrigan is as follows: "Petitioner shows that the reasonable value of the services of his wife are $100 per month and shows that he will be deprived of said services for an undetermined length of time pending disability of his wife." On this subject he testified in part as follows: "As to the value of her services as a wife to me, to replace a maid costs about $35 a week or about $140 a month. I had to employ a maid to assist her after the collision. We did not have one before the collision. Mrs. Harrigan performed her household duties." Mrs. Harrigan testified in substance that at the time of the trial she was still having trouble with her back; that there was swelling at the base of her spine; that it was difficult both for her to stand up and sit down, that when she changes positions it is painful; that she has been to doctors and done everything possible to get rid of it; that Dr. Taylor treated it and that she has been taking massages and other treatments. Dr. Taylor testified that he had treated her since the early part of October, 1946; that at the time of this testimony (March 4, 1948) she was still his patient; that on the occasion of his last examination (February 16, 1948), she was still suffering from injuries sustained in the collision; that in his opinion some of her injuries are permanent; that she was disabled from performing her household duties after the collision until the first of the year 1947, and that at the time of his testimony and for some time to come she was not and will not be able to do a hard day's work at home.
The court failed to charge the jury that, after arriving at the value of her services which will be lost to the husband in the future by reason of her injuries, the same must be reduced to its present cash value.
In Central of Ga. Ry. Co. v. Keating, 45 Ga. App. 811, 819 ( 165 S.E. 873), division 10 of the decision, this court held as follows: "The court charged the jury that the husband was entitled to recover for the homicide of his wife the full value of her life, and that `the full value of the life of the deceased as shown by the evidence is the full value of her life without deduction for necessary or other personal expenses of the deceased had she lived.' Thereafter the court charged the jury that `On the question of determining the amount of damages for services, if you find damages for services (the plaintiff may recover for the life services of his deceased wife), the jury in estimating the value of domestic services rendered by a wife are authorized to take into consideration what may be the value of many services incapable of proof, but measured in the light of your own observation and experience,' and that `There need be no direct or express evidence as to the value of a wife's services, either by day, week, month, or any other period of time, or of any aggregate sum, but you determine from the evidence the amount which would fairly and justly compensate the plaintiff for his loss, if any.' The court did not preface this latter excerpt from his charge with an instruction that in determining the full value of the life of the deceased wife they might look to the value of her services to her husband. Nowhere did the court charge the jury that, having arrived at the gross value of the life of the deceased, they should reduce it to its present cash value. The charge of the court here dealt with instructed the jury that the plaintiff might recover for the life services of his deceased wife, without reducing the value of the same to its present cash value. We think this was error." (Italics ours.)
Counsel for the plaintiff, Thomas Harrigan, contend that future lost services of the wife to the husband are in the same category as pain and suffering, which is to be determined according to the enlightened consciences of impartial jurors and need not be reduced to present cash value, where the wife is injured. They contend that Central of Ga. Ry. Co. v. Keating, supra, is not authority to the contrary, because there the wife was killed, while in the instant case the services of the wife were lost to the husband because she was only injured. We fail to recognize this distinction. In both instances the future value of the services is to be determined. In case of death the value of these future services is determined for the purpose of showing the present full value of the life of the deceased. In case of injury it is determined for the purpose of establishing the basis for recovery by the husband for their loss. The same reason exists for the reduction thereof to present cash value as in the case of loss of future earnings.
It follows that the trial court erred in failing to charge the jury that the future services of the wife lost to the husband must be reduced to present cash value. The case of Thomas Harrigan (No. 32408 and No. 32409) must therefore be reversed.
5. Special ground 7 of case No. 32408 and special ground 6 of case No. 32409 contend that the trial court erred in admitting over objection the testimony of the attending physician of the plaintiff, Thomas Harrigan, to the effect that he is likely to develop traumatic arthritis of some of the cervical vertebrae as the result of his injuries. This is contended to be error because the same constitutes speculation on the part of the witness rather than a statement of his professional opinion. It is contended that said evidence is prejudicial because it suggests to the jury that said plaintiff might be much more seriously injured than was shown by the other evidence.
The testimony appears to be the professional opinion of the doctor. It is therefore not subject to the objection that it constitutes speculation on his part rather than a statement of his professional opinion. The doctor in the instant case had attended this plaintiff and was in position to be thoroughly familiar with his injuries. He was competent to give his opinion as to their permanency. A part of this opinion appears to have been based on the likelihood of the development of traumatic arthritis in some of the cervical vertebrae of this plaintiff. The evidence was admissible for this purpose. See Seaboard Air-Line Ry. v. Maddox, 131 Ga. 799 ( 63 S.E. 344). Section 38-1710 of the Code provides as follows: "The opinion of experts, on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." The weight and credit to be given the testimony of such expert is for the jury. See McDowell v. State, 78 Ga. App. 116 (Supra). These assignments of error are without merit.
6. Special ground 9 of case No. 32408 and special ground 2 of case No. 32409 contend that the trial court erred in failing to charge a correct measure for the ascertainment of the special damages consisting of doctor bills, drugs, medicine, and hospital bills. The maximum recovery that could have been had for these items of damages has been written off by counsel for the plaintiff, Thomas Harrigan. These assignments of error have therefore been rendered moot.
7. Special ground 5 of case No. 32409 and special ground 3 of case No. 32412 contend that the trial court erred in refusing to give, in response to a timely written request, a charge as follows: "I charge you, gentlemen, that the law presumes that every man in his private character does his duty until the contrary is shown. Unless the evidence shows that Mr. Lynn failed to hold out his hand or give some signal of his intention to turn to the left, then the presumption is that he did give such a signal before running any part of his automobile to the left of the center of the highway, if you believe he did so." One of the allegations of negligence against the defendant Lynn contained in the petitions is as follows: "In failing to give any warning or signal of his intention to drive into the highway." The court here was requested to charge in effect that, if there was no evidence to show that the defendant Lynn failed to hold out his hand or give some signal of his intention to turn to the left, then the presumption is that he did give such a signal before running any part of his automobile to the left of the center of the highway. The petitions do not charge him with failure to give such a signal. The petitions do charge him with failure to give a signal of his intention to drive into the highway, but not failure to signal his intention to drive to the left of the center line after getting into the highway. It is true that the evidence would authorize the jury to find that the defendant Lynn at the time of the collision between the truck and the defendant, Central Truckaway System Inc., and his car, was driving to the left of the center line of the highway, but he was not charged by anyone with having failed to hold out his hand or give a signal before so driving. It is not, therefore, such a vital part of the case as to require a reversal because of the failure to charge that specific request, as was held in Western Atlantic R. v. Frazier, 66 Ga. App. 275 (1) ( 18 S.E.2d 45), because the court elsewhere charged that there can be no recovery on negligence not charged in the petitions. In any event, the trial judge in his general charge sufficiently covered the subject in charging as follows: "The presumption is that every man obeys the law, and that would apply to the defendant Lynn in these cases, and this presumption should prevail and control your deliberations until and unless it is overcome by satisfactory evidence." These assignments of error are without merit.
8. Special ground 1 of case No. 32411 and special ground 4 of case No. 32412 contend that the trial court erred in overruling the motion for a continuance made by counsel for the defendants, on a plea of surprise to an amendment to the petition of Mrs. Harrigan alleging injuries additional to those set out in the original petition. This amendment was filed during the course of the trial and claimed injuries to all the muscles and joints in and about the small of her back, near the sacroiliac joint and the tip of her spine in and about the coccyx. The original petition alleges that "all of the muscles, ligaments, nerves, and bones of her body were broken, contused, torn and lacerated." The testimony of Dr. Alva Taylor, Mrs. Harrigan's attending physician, was taken by deposition prior to the trial. He was cross-examined, the effect of which was to give the defendants advance notice of the substance of his evidence. Regarding Mrs. Harrigan's condition, his testimony included a statement as follows: "A rectum examination caused considerable discomfort when the tip of these finger came in contact with the sacrum and coccyx bones. A slight movement would cause severe pain." The trial of these cases began March 22, 1948, and this amendment was filed on the second day of the trial. Dr. Taylor, by deposition taken March 4, 1948, testified that he had last examined Mrs. Harrigan on February 16, 1948, that the coccyx was very tender, and that the sacrum and coccyx condition had not changed. Under the express provision of § 81-1409 of the Code, providing for a continuance based on a plea of surprise on account of the filing of an amendment to the pleadings, a case may be continued in the discretion of the trial judge. Where the order of the judge refusing such continuance does not amount to an abuse of his discretion, this court will not interfere. See Porter v. Porter, 17 Ga. App. 457 (1) ( 87 S.E. 707). The testimony by deposition of the attending physician of Mrs. Harrigan, taken some three weeks before the amendment, was sufficient to put the defendant on notice of her condition, and the denial of the motion for a continuance did not amount to an abuse of discretion. These assignments of error are without merit.
The trial court erred in overruling the motions for a new trial in Thomas Harrigan v. Central Truckaway System Inc., Casualty Reciprocal Exchange, and Rodney L. Lynn (Nos. 32408 and 32409) for the reasons hereinbefore set forth in the 4th division of this opinion, and the judgments in that case are therefore reversed.
The verdict was supported by the evidence in Mary C. Harrigan v. Central Truckaway System Inc., Casualty Reciprocal Exchange, and Rodney L. Lynn (Nos. 32411 and 32412), and none of the special assignments of error therein are meritorious. The judgments overruling the motions for a new trial in that case are, therefore, without error, and are affirmed.
Judgment affirmed. MacIntyre, P. J. and Gardner, J. concur.