Opinion
36563.
DECIDED MAY 28, 1957.
Tort; ambulance and automobile collision. Before Judge Heery. Savannah City Court. October 23, 1956.
Myrick Myrick, Willis J. Richardson, Jr., for plaintiffs in error.
Jack E. Miller, contra.
1. "An assignment of error upon the refusal of the court to award a nonsuit will not be considered, where thereafter the case proceeded to a verdict in favor of the plaintiff, and the defendant's motion for a new trial, to the overruling of which exception is taken, includes the ground that the verdict was contrary to the evidence and without evidence to support it." Wakefield v. Lee, 18 Ga. App. 648 (1) ( 90 S.E. 224); Atlantic Coast Line R. Co. v. Blalock, 8 Ga. App. 44 ( 68 S.E. 743); Bagwell v. Milam, 9 Ga. App. 315 ( 71 S.E. 684).
2. The trial court did not err in denying the motion for a directed verdict, the motion for judgment notwithstanding the verdict, nor the general grounds of the motion for new trial.
3. The trial court has a discretion to control the right of cross-examination within reasonable grounds, and the exercise of this discretion will not be controlled unless abused.
4. The jury is not confined to any procrustean rule in measuring the value of a life. The life-tables are an aid to that end, but age, health, habits, and the money one is making, are also data from which a conclusion may be drawn.
5. It is not ordinarily error to state the contentions of the parties as made by the pleadings, and this is especially true where the contentions submitted are substantiated by fact or inference.
6. Defects in pleadings which should have been taken advantage of by special demurrer are not proper subject matter of a motion for new trial.
7-9. There is no merit in special grounds 14, 15 and 17 (numbered 18, 19 and 21) for the reasons stated in the respective divisions of the opinion.
DECIDED MAY 28, 1957.
Lucille Powell, as the widow of Sergeant Henry F. Powell, brought an action for damages under Code § 105-1302 against Percy E. Gordy and Lucy Gordy, husband and wife, for the homicide of her husband, which she alleged was caused solely by the negligence of the defendants, both individually and jointly. The material allegations of the petition are substantially as follows: The plaintiff's husband was at the time of his death the sole support of the plaintiff and their children. He was steadily employed and earned in excess of $6,867.60 per year, most of which he spent in the support, maintenance and education of his family. On June 20, 1955, at approximately 6:30 a. m., when the weather was clear and bright, the plaintiff's husband was driving a 1953 Packard ambulance belonging to Sipple's Mortuary in the course of his authorized employment and in answer to an emergency call. While proceeding from the patient's home on an emergency call and en route to the hospital, Sergeant Powell was driving west on Henry Street at a lawful rate of speed. The red light on the ambulance was blinking and a siren was blowing at top capacity. He was driving as cautiously as possible, taking care to observe all traffic regulations and to care for and deliver his patient to the hospital, who, at the time, was in a serious condition from loss of blood. On coming to the intersection of Henry Street and East Broad Street, Sergeant Powell, while still blinking the red light and still blowing the siren on the ambulance, watched the green light on the signal light at this intersection, and coming upgrade, slowed the ambulance and proceeded to cross the intersection carefully and cautiously; but, when he was in the intersection approximately two feet on the other side of the center line of East Broad Street, a 1953 Ford sedan, later identified as belonging to both the defendants as a family car and being driven by Mrs. Gordy, emerged from Sergeant Powell's left, heading north on East Broad Street at a terrific rate of speed, to wit, 50 miles per hour, and collided with the ambulance being driven by Sergeant Powell. The Gordy car struck the ambulance at the left front fender and glancing sideward proceeded an additional 75 feet from the point of impact. At the time of the impact, Sergeant Powell could do nothing to prevent the collision caused by Mrs. Gordy's speed and due to the fact that the Gordy car rammed into the side of the ambulance. Mr. and Mrs. Gordy, individually and jointly, negligently, wantonly, carelessly, and with complete disregard for the safety of others, caused the collision resulting in Sergeant Powell's death by performing acts in violation of the following State laws:
(a) Code (Ann. Supp.) § 68-1650, by failing to yield the right of way to the ambulance which was already in the intersection at the time the defendants' automobile, driven by Mrs. Gordy, entered the intersection.
(b) Code (Ann. Supp.) § 68-1652, by failing to stop and yield the right of way to vehicles already in the intersection and by failing to stop for the stop signal which was red, indicating a stop on the side from which Mrs. Gordy was approaching, and green on the side from which Sergeant Powell was approaching. The signal light turned yellow immediately after Sergeant Powell entered the intersection. This light when yellow on one side continues the red light on the other side until a red light shows in place of the yellow, thus the defendant at the time of the collision disregarded a red light in violation of the statute.
(c) Code (Ann. Supp.) § 68-1654, in that the defendant heard the siren of the ambulance and recklessly, carelessly, and without regard for the safety of others, wantonly disregarded the siren and continued to drive at a reckless pace into the intersection while still hearing the siren.
(d) Code (Ann. Supp.) § 68-1632 [?], in that the defendant drove at a speed of approximately 50 miles per hour. As the result of such speed the defendants' automobile struck the ambulance and proceeded another 75 feet and knocked down and damaged a bus-stop sign on Henry Street.
(e) Code (Ann. Supp.) § 68-1626, in that the defendants heard a siren and hearing it failed to use reasonable and prudent caution in speed and action in the presence of a potential hazard, knowing another vehicle was in the vicinity, and failing thereby to exercise due care under the circumstances in violation of this statute.
(f) Code (Ann. Supp.) § 68-1615, in that the defendant failed to stop for a red signal light in the intersection in violation of the statute. As a direct result of the violations of the enumerated State statutes which constitute negligence per se on the part of Mrs. Gordy and on the part of Mr. Gordy under the "family-purpose doctrine," the plaintiff suffered the loss of the full value of the life of her husband. All the allegations stated affecting the defendant, Mrs. Gordy, are repeated and pleaded against Mr. Gordy, as Mr. Gordy is the husband and head of the household and liable for the torts of his wife under Code § 105-108 under the family-purpose doctrine. At the time of the collision, Mrs. Gordy was driving the automobile with the knowledge, permission and consent of Mr. Gordy, and the automobile was and has been used as a family car by both the defendants and both the defendants have and did use the automobile in their business and pleasure adventures equally.
(g) On the entire side of the automobile driven by Mrs. Gordy was a large sign in these words: "Acme Lock, Bike Gun Fix-It Shop, 1909 East Broad Street," indicating the business operated by Mr. Gordy as his business. As the result of the joint and individual negligence of the defendants and solely because of such negligence, the plaintiff's husband received enumerated injuries from which he died. At all times herein stated, Sergeant Powell exercised great care and caution and exhibited unusual caution and care in all his actions and in no way contributed to the collision or to his resulting death, and in no way possible could he have avoided the collision.
In their answer, the defendants denied the plaintiff's allegations of negligence and alleged that Sergeant Powell's death was due to his negligence and reckless disregard for the safety of others which caused the collision and resulted in his death. It is further alleged that Sergeant Powell violated the following ordinances of the City of Savannah contained in Grayson's Code of 1945, to wit, (a) "Section 59-123. Rates of speed. It shall be the duty of any person or persons using upon any street of the City of Savannah an automobile of any kind or character, or any vehicle, to proceed carefully and cautiously, and to so operate, handle and guide the said machine as to avoid damage to persons or property. No vehicle shall proceed at a rate of speed greater than that permitted by ordinance."
(b) "Section 59-203. Speed limits. No vehicle shall be driven at a speed greater than 25 miles per hour on any street in the City of Savannah south of Oglethorpe Avenue; and no vehicle shall be driven at a speed greater than 20 miles-per hour on any street in the City of Savannah north of Oglethorpe Avenue."
(c) "Section 59-130. All vehicles carrying United States mail, and police and fire department vehicles and ambulances and physicians, when responding to emergency calls shall have the right of way over all other vehicles."
At the close of the plaintiff's evidence, the defendants moved for a nonsuit which was denied. At the close of all the evidence, the defendants moved for a directed verdict in their favor which was also denied. The jury returned a verdict in the amount of $35,000 in favor of the plaintiff. The defendants moved for a judgment notwithstanding the verdict which was denied. The defendants made a motion for new trial, based on the usual general grounds and 17 special grounds, which was denied. The defendants on appeal to this court assign error on each of the foregoing judgments.
1. Headnote 1 is self-explanatory and requires no elaboration.
2. As there was a sharp conflict in the evidence as to the material facts together with all reasonable deductions and inferences to be drawn therefrom, a verdict was authorized but not demanded for either party, and the trial court, consequently, did not err in denying the defendants' motion for a directed verdict, their motion for judgment notwithstanding the verdict, nor the general grounds of their motion for a new trial. Shaw v. Probasco, 139 Ga. 481 (1) ( 77 S.E. 577); Snyder v. Elkan, 187 Ga. 164 (1) ( 199 S.E. 891).
3. In special ground 1 (numbered 5) error is assigned on the refusal of the trial court to permit counsel for the defendants to ask Woodrow Osborne, a witness for the plaintiff and the patient in the ambulance, on cross-examination, if he were intoxicated at the time, which counsel contends was an unlawful limitation upon its right under Code § 38-1705 to a thorough and sifting cross-examination.
The trial court has a discretion to control the right of cross-examination within reasonable grounds, and exercise of this discretion will not be controlled unless it is abused. Rogers v. State, 18 Ga. App. 332 (2) ( 89 S.E. 460); Fields v. State, 46 Ga. App. 287 (3) ( 167 S.E. 337).
It appears from the evidence that this witness was unconscious at the time of the collision, and it seems to us that whether he were unconscious from loss of blood, as stated by another witness, or by reason of intoxication, was immaterial to the points at issue between the parties, and the only purpose that could be served by forcing him to reply to the question posed by counsel for the defendants would be to embarrass him. The trial court did not abuse its discretion in refusing to permit counsel for the defendants to cross-examine him upon this point.
4. "The jury is not confined to any procrustean rule in measuring the value of a life. The life-tables are an aid to that end, but age, health, habits and the money one is making, are also data from which a conclusion may be drawn." Central Railroad v. Thompson, 76 Ga. 770 (6); Savannah, Fla. Western Ry. v. Stewart, 71 Ga. 427, 428 (1); Western Atlantic R. Co. v. Bussey, 95 Ga. 584 (9) ( 23 S.E. 207).
Under an application of this principle of law, the trial court did not err, as counsel for the defendant alleges in special ground 2 (numbered 6), in reading the following excerpts from the plaintiff's pleadings which were supported by evidence: "Henry F. Powell, the deceased husband of the plaintiff, was a strong, active, virile, ambitious man, and was loyal and obedient to service . . . [and] was a kind and loving father."
Code § 38-202, which counsel for the defendants alleges is violated by such instruction, is not applicable in a death case. This section refers to the general character of the parties, not to the general character of the deceased for the value of whose life suit is brought.
5. In special grounds 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 16 (numbered respectively 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 20), error is assigned on the trial court's reading specified excerpts from the pleadings of the plaintiff on the ground that there was no evidence to support these allegations. It is not ordinarily error to state the contentions of the parties as made by the pleadings ( Briesenick v. Dimond, 35 Ga. App. 668, 134 S.E. 350, and citations), and our examination of the brief of evidence discloses that each of the allegations of which complaint is made is substantiated by fact or inference. There is no merit in any of these grounds.
6. It is now established in this State that a wife may recover for the loss of the consortium of her husband occasioned by personal injuries to him ( Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga. App. 519, 77 S.E.2d 24), and assuming, but not deciding, that a wife may recover for loss of consortium where her husband lives for a short period after his injuries in a suit brought for the full value of his life, defects in pleadings which should have been taken advantage of by special demurrer are not proper subject matter for a motion for a new trial. Coulson v. State, 13 Ga. App. 148 (2) ( 78 S.E. 1108), and citations; Tompkins v. American Land Co., 139 Ga. 377 (2) ( 77 S.E. 623), and citations. Under an application of this rule, there is no merit in special ground 13 (numbered 17) in which counsel for the defendants assign error on the trial court's reading from the plaintiff's pleadings the references to consortium. The only error assigned in this ground on the court's action is that the plaintiff was not entitled to recover for the loss of consortium but was limited to a recovery for the full value of her husband's life. It appears from the evidence that the husband lived two days after his injuries.
7. In special ground 14 (numbered 18), counsel for the defendants assigns error on the trial court's reading the allegations of the plaintiff's petition without instructing the jury that they were merely the contentions of the plaintiff, were not evidence of the facts therein alleged, and that the jury should not consider allegations that were not supported by the evidence. There is no merit in this ground. Viewed as a whole, the court made it quite clear that in reading the plaintiff's petition it was reading only the allegations and contentions of the plaintiff. It also instructed the jury that the defendants demanded strict proof of these allegations and instructed the jury: "The plaintiff must recover, if she recovers at all, upon one or more of the grounds of negligence which is set forth in her petition, therefore, if you reach the conclusion that the defendant was negligent and the plaintiff is entitled to recover under the rules that I have given you, you determine whether the negligence which you find is an act of negligence, one which is set forth in the petition . . . she is entitled to recover if she proves any one or more of the grounds to your satisfaction. . ."
8. In special ground 15 (numbered 19), error is assigned on the alleged failure of the trial court to set out the material contentions of the defendants. An examination of the court's instructions to the jury shows that the court not only set out the contentions of the defendants but gave a full and fair charge on every material defense. There is no merit in this ground. See, in this connection, Harris Co. v. Vallee Co., 29 Ga. App. 769 (9) ( 116 S.E. 642); James v. Cooledge, 129 Ga. 860 ( 60 S.E. 182).
9. In special ground 17 (numbered 21), counsel for the defendants contends that the following principle of law should have been applied to both the plaintiff and the defendants, but was not: "If you find that the defendant violated any one or more of the statutes, or the ordinances of the City of Savannah, he [she?] would have been guilty of negligence per se or negligence as a matter of law." At various points in its instructions to the jury, the court stated that the degree of diligence owed was the same for both the plaintiff and the defendants and also stated that if the jury should find that the ambulance was not an authorized emergency vehicle it should have been treated as any other vehicle. There is no merit in this ground.
The trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.