Jeff Campbell filed suit in the City Court of Richmond County to recover damages for personal injuries which he sustained as the result of a collision between a school bus operated by him and a soft drink truck owned by the defendant Canada Dry Bottling Company and operated by its employee, the defendant Frank Russo. Damages were sought in the amount of $75,000 for pain and suffering, $1,362.22 for medical expenses incurred and $2,229.50 for past lost wages.
The defendants filed an answer to the plaintiff’s petition in which they denied the allegations of negligence charged against them, and the case proceeded to trial. The jury returned a verdict for the plaintiff in the amount of $18,500 and the defendants filed a motion for new trial which, as amended by the addition of several special grounds, was denied. The exception is to that judgment.
1. After the introduction of evidence by the plaintiff, the defendants announced that they did not intend to introduce any evidence and requested the court to permit their counsel to make the opening and concluding argument to the jury. This request was denied by the court and in special ground 4 of the amended motion for new trial, the defendants assign error on that ruling.
Under the decisions of the Supreme Court in
Moore v. Carey,
As pointed out in the
Williamson
case, supra, the rule that the defendant in a civil case is entitled to the opening and concluding argument only when he has admitted a prima facie case
*58
in behalf of the plaintiff (See
Abel v. Jarratt & Co.,
The trial court erred, therefore, in refusing to allow defendants’ counsel to make the opening and concluding argument to the jury; and such error requires the reversal of this case.
Chapman v. Atlanta & W. P. R. Co.,
The contention of the plaintiff that this ground of the amended motion was too incomplete for consideration since the defendants did not expressly recite therein that the error complained of was prejudicial to them is without merit. As stated in the Phelps case, supra, the improper denial of the right to the opening and concluding argument is presumptively harmful to the deprived party.
2. The evidence adduced on the trial of this case demanded a finding that the plaintiff sustained a severe and painful “whiplash” injury as the proximate result of the negligence of the defendant’s company truck driver in striking the rear of the school bus while it was stopped for the purpose of receiving-passengers. The trial court did not err, therefore, as contended in special ground 6 in withholding the issue of liability from the jury and in submitting only the issue of damages for their consideration.
3. The error complained of in special ground 5 was an obvious oversight on the part of the trial court, and since it is unlikely to recur on the subsequent trial of this case, this ground need not be considered. Likewise, since this case is being reversed, it is unnecessary to consider the errors complained of in the remaining special ground other than to point out that the trial *59 court in its charge to the jury should make it clear that the measure of damages for pain and suffering (that is, the enlightened conscience of the jury), does not apply to the special damages sought, and should specifically charge the jury with reference to the correct measure of damages for such items of recovery.
4. For the reasons stated in Division 1 of the opinion, the judgment of the trial court must be reversed.
Judgment reversed.