Hunt v. WilliamsHunt v. Williams
- Reporters:
- , ,
- Before:
- Hall
Special ground 1 of defendants’ motion for new trial complains of the admission of the testimony of a witness that in his opinion “. . . what caused the wheel, the left front wheel to lock as I described it, it could be caused from grease or brake fluid on the brakes or the brakes could be too tight on that one wheel.” The defendant objected to this evidence on the ground that “it would be a conclusion on the part of the witness.” After the admission of the above testimony the same witness testified further: “. . . As to whether there was anything on that truck that could have caused that left front wheel to slow down and locked, it could have been brake fluid or grease on the brake shoe, either one would cause a brake shoe to grab. The other reason was he could have had them too tight in adjustment. You can have one brake too tight on an automobile and when you put it on it will pull that way, that brake will pull the car that direction for some distance. . .” There was no objection to the testimony just quoted.
Whether the court erred in admitting the testimony objected to is immaterial, since the same witness gave substantially the same testimony again and no objection was made to it. Butts County v. Hixon, 135 Ga. 26, 27 (68 SE 786); Simmons v. State, 34 Ga. App. 163 (128 SE 690); Exchange Bank of Savannah v. Pate, 41 Ga. App. 1, 3 (151 SE 823); Corley v. Russell, 92 Ga. App. 417 (88 SE2d 470). Special ground 1 therefore shows no error requiring a new trial.
In special ground 2 the defendants complain that their counsel asked the witness Noah Williams on cross-examination, “You don’t have a driver’s license?” and the court sustained
Accordingly, even though the exclusion of Noah Williams’ testimony that he did not have a driver’s license may have been error (which we do not decide), the defendants were not harmed because such testimony was already in evidence. It “is not every error which will warrant the grant of a new trial. The error must be a substantial one which harms the complaining party by depriving him of something to which he was entitled in the exercise of his right to a fair and lawful trial. . . In the case at bar the record discloses that the plaintiff in error was permitted to prove substantially everything contained in the testimony which was excluded . . . therefore he could not possibly have been harmed by being deprived merely of the privilege of repetition.” Eberhardt v. Bennett, 163 Ga. 796 (2) (137 SE 64); Southern Ry. Co. v. Ward, 131 Ga. 21 (61 SE 913).
In special ground 3 the defendants contend that the following excerpt from the court’s charge to the jury was error because it was not authorized by the pleadings and evidence: “Every motor vehicle, other than a motorcycle or motor-driven cycle, when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be so constructed that failure on any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels. . . Every motor vehicle or combination of motor-
There were allegations and evidence forming an issue whether the brakes on defendants’ truck were adequate to control its movement. There was no issue in the case as to whether the brakes met the other statutory requirements embodied in the charge objected to. This court has recently held that “To authorize the court to charge on the issue of whether brakes are capable of performing as required by Code Ann § 68-1715 (b),’ there must be evidence that the brakes have been tested and as to whether or not they meet the statutory requirements.” Atlanta Metallic Casket Co. v. Hollingsworth, 104 Ga. App. 154 (6) (121 SE2d 388). However, it is also held: “An exception to divers instructions of the court to the jury, in a ground of a motion for new trial, when some of such instructions are clearly pertinent to the issues involved, is not well taken even if some of such instructions may not be pertinent.” Mangham v. Cobb, 160 Ga. 182, 187 (127 SE 408).
Accordingly, there was no error in overruling special ground 3 of the motion for new trial.
Special grounds 4 and 5 of defendants’ motion for new trial involve exceptions to all or part of the following excerpt from the court’s charge: “The guide for fixing damages, if any, for pain and suffering and diminished capacity for labor, is the enlightened consciouses [sic] of impartial jurors. . . You will
In ground 5 the defendants complain of the court’s charging the third paragraph quoted above together with the instruction on the method for calculating damages, on the ground that it was not supported by evidence from which the jury could ascertain with reasonable certainty what plaintiff’s earning capacity was, or the extent to which it had been diminished.
There was evidence that the plaintiff’s ability to work was diminished after her injuries. The plaintiff testified that she had never worked at a job for wages, but that she had applied for a job at the pants factory in Toccoa and had been offered a trial at a sewing job that would have paid a dollar an hour for forty hours a week; that she was told she could have the job if she could “make production after the forty hours.” The evidence does not show whether this offer to plaintiff was before or after her injuries or whether before her injuries she was capable of performing the job, though there is evidence that the plaintiff did sewing at home before her injuries and afterwards was unable to do anything. This was not sufficient evidence from which the jury could arrive at, estimate or infer the pecuniary value of plaintiff’s earning capacity before her injury, and hence insufficient to determine the amount by which her earning capacity had been dimnished, even if we assume it was totally destroyed. “. . . Yet where a recovery is sought for pecuniary loss resulting from an impaired capacity to earn money, resulting from a physical injury, there must appear some data from which the jury can arrive at the pecuniary value of the injured person’s earning capacity both before and after the
The charge complained of was not supported by sufficient evidence, and the overruling of special ground 5 was error. It therefore becomes unnecessary to pass on other contentions made by the defendants in this ground.
In special ground 4 the defendants complain of the whole of the above excerpt from the charge, contending, first, that it erroneously authorized an award of damages for “diminished capacity to labor as a separate and distinct item of damages”; and, second, that it authorized the jury to award damages of three types, for (1) pain and suffering, (2) loss of capacity to labor, and (3) loss of earning capacity, and thereby to award damages twice based on the effect of plaintiff’s injuries on her ability to work and earn money.
Defendants’ second contention raised the question whether, as a matter of law, it is error to charge that an injured plaintiff has a right to recover damages for loss of capacity to
labor
to be determined from the jurors’ enlightened conscience and also damages for loss of
earning
capacity determined from evidence sufficient to show some pecuniary value of earning capacity. Defendants cite
Jackson v. Co-op Cab Co.,
102 Ga. App. 688, 692 (117 SE2d 627), to support the contention that it is error to charge that plaintiff can recover for both kinds of damages. That case merely holds that an allegation of a petition that the plaintiff “has suffered permanent diminution of earning capacity of at least
25%
and is entitled to recover the sum of $15,000 because of the said diminution” is a conclusion subject to demurrer when “no facts are alleged, such as the plaintiff’s earnings before the injury and his physical or other disability thereafter, upon which damages for loss of earning capacity could be predicated.” The statement respecting
Jones v. Hutchins,
101 Ga. App. 141 (113 SE2d 475), contained in the
Jackson
case does not appear to be necessary to the decision.
Jones v. Hutchins,
supra, on the present question, holds only
For the reason stated in subdivision 5(a) above, the overruling of ground 4 of defendant’s motion for new trial was error.
In special ground 6 the defendants complain that the court in its charge stated to the jury the allegations contained in plaintiff’s petition, and then in stating the substance of defendants’ answer restated many of plaintiff’s allegations, thus overemphasizing and impressing the jury with plaintiff’s contentions and underemphasizing defendants’ contentions. Florence v. Byrd, 28 Ga. App. 695 (113 SE 227); and Southern Ry. Co. v. Ray, 28 Ga. App. 792 (2) (113 SE 590), cited by the defendants, state that in the charge of the court “no essential contention of either party should be omitted.” The defendants do not contend that the court omitted any contention from its charge. Following the part of the charge complained of, the court instructed the jury that they should look to the pleadings, which would be out with them, for the contentions of the parties, and then properly instructed the jury as to the burden of proof. This is just what the court did in Southern Ry. Co. v. Ray, supra, in which the chargé discussed was held not error.
The‘court‘s charge in this case does not appear to favor the plaintiff’s contentions or be prejudicial to the defendants as contended in ground 6. Therefore, this ground shows no error.
Prior to 1947 a brief of evidence was indispensable to a motion for new trial. However, even under the new- law (Ga.- L. 1947, p. 298), where all the assignments of error raised in the motion for new trial or amendments thereto require consideration of the evidence,- a brief of the evidence is essential to the motion and in its absence, neither the trial court nor this court will consider those alleged errors which necessitate a consideration of the evidence. Welfare Finance Co. v. Corbin, 91 Ga. App. 485 (85 SE2d 819). See Leverett, Hall, Christopher, Georgia Procedure & Practice § 22-7.
In Southern Ry. Co. v. Jay, 137 Ga. 60 (72 SE 503) the trial judge in -his original order on the motion for new trial and within the time allowed by the law set-the hearing on the motion for new trial for a specified time (several months in the future) and gave movant until that,- date to prepare and present for approval a brief of the evidence. When the motion came up for hearing on this date (October 17th), an order was passed continuing the motion until a future date (October 29th) stating “that the court reporter has been unable to write out the evidence taken on the trial.” On October 29th the party opposing the motion for new trial moved to dismiss this motion because there was no authority in the order of October 17th giving the movant until the October 29th hearing to present a brief of the evidence. The movant moved to amend the order nunc pro tunc and supply such authority. The former’ motion was overruled; the latter motion was granted with the following- language being stated by the trial judge in the bill of exceptions: “The court did this because, as he stated at the time, that he intended to put in the order when he signed it the right to movant to have until October 29, 1910, to present the brief for approval.” (Emphasis supplied.) The Supreme Court’ of Georgia held that the trial court did not err in entering the order nunc pro tunc nor in refusing to dismiss the motion for a new trial.
The trial judge in this case stated in his nunc pro tunc order that it was the court’s “intention” that the .order entered January 13, 1961,. .on the defendants’ motion for new- trial contain a
On the main bill of exceptions for the reasons stated in divisions 4 and 5 the judgment must be reversed.
On the cross-bill of exceptions the judgment is affirmed.
Judgment reversed on main bill of exceptions; judgment on cross-bill affirmed.
Felton, C. J., and Bell, J., concur.