Maloy v. DixonMaloy v. Dixon
- Reporters:
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- Before:
- Eberhardt
Although the clerk of the trial court has included the interrogatories and answers and the deposition in the record transmitted to this court, these were never introduced into evidence, never became part of the transcript below and are not properly a part of the record here.
Herring v. Pepsi Cola Bottling Co.,
113 Ga. App. 680 (1) (149 SE2d 370);
Smith v. Zachry,
128 Ga. 290 (1) (57 SE 513). They cannot be considered in ruling upon the enumerations of error.
Smith v. Continental Cas. Co.,
102 Ga. App. 559 (2) (116 SE2d 888);
Howell v. Federated Mut. &c. Ins. Co.,
114 Ga. App. 321 (1) (151 SE2d 195);
Jackson v. U. S. Fidel. &c. Co.,
119 Ga. App. 111 (3) (166 SE2d 426). “The burden is on the party alleging error to show it affirmatively by the record.”
Shepherd v. Shepherd,
225 Ga. 455, 457 (169 SE2d 314). As will hereafter appear, certain of the enumerations of error are dependent upon matter to be found only in the interrogatories and answers, in the
Error is enumerated on failure of the court to give in charge a request that when a party has evidence within his power or control by which he may rebut a claim against him and fails to produce that evidence, a presumption arises that the evidence would be unfavorable or harmful to the party failing to produce it. This principle is stated in Code § 38-119.
The request was grounded on the failure of the defendant to testify. The Supreme Court and this court have held that when a defendant, who is under no duty to aid the plaintiff in making out his case,
1
fails to testify the
But if this were not the case it has long been the rule that when a verdict has been returned in favor of the plaintiff, errors in the giving of the charge, in omissions from the charge or in the refusal of requests which go to the matter of liability only are harmless to the plaintiff and afford no ground for reversal at his instance.
Peterson v. Wadley & Mt. Vernon R. Co.,
117 Ga. 390 (1) (43 SE 713);
Jackson v. Seaboard A. L. R.,
140 Ga. 277, 283 (78 SE 1059);
Brown v. Brown,
152 Ga. 463 (2) (110 SE 234);
Jackson v. Lipham,
158 Ga. 557 (5) (123 SE 887);
O’Quinn v. Douglas, A. & G. R. Co.,
7 Ga. App. 309 (1, 2) (66 SE 810);
Hunt v. Western & A. R.,
49 Ga. App. 33, 36 (174 SE 222);
Trammell v. Atlanta Coach Co.,
51 Ga. App. 705, 706 (181 SE 315); L.
P. Gunson & Co. v. Garrett,
53 Ga. App. 717 (3)
It is elemental that one who seeks the reversal of a verdict and judgment must show harm as well as error.
Code Ann.
§ 81A-161;
Brown v. City of Atlanta,
66 Ga. 71, 76;
Dill v. State,
222 Ga. 793 (1) (152 SE2d 741);
Bateman v.
Cases relied upon by appellants do not require a different result. Quoting in their brief from
First National Bank v. Atlanta Rubber Co.,
77 Ga. 781, 786, they assert that “It is a well-settled rule, where a fact rests in the knowledge of a party, and he fails to make it appear so as to clear up the case, that the jury may infer against the party on that account,” but they fail to complete the quotation, which continues, “but when the fact is concealed by a party when interrogated thereto, this of itself suggests fraud.” In that case the party (bank) did testify by its cashier, who failed to give certain critical information that obviously lay within his knowledge and which the opposite party did not have. Moreover, the court was not dealing with a charge of or a failure to charge the presumption, but held that that court was authorized to charge on the matter of fraudulent
Stevenson v. State, 83 Ga. 575 (10 SE 234) was a criminal case, and states a rule which, if it ever had validity, no longer obtains. Mills v. State, 133 Ga. 155 (5) (65 SE 368); Clay v. State, 122 Ga. App. 677 (1) (178 SE2d 331).
Brothers v. Horne, 140 Ga. 617 (79 SE 468) dealt with the failure of a party to produce a witness at the trial — not with his own failure to testify. (We deal with that in Division 3).
In Moye v. Reddick, 20 Ga. App. 649 (93 SE 256), the verdict was for the defendant — not the plaintiffs, as here. Consequently, as against the plaintiff, the rule of harmless error had no applicability, as it does here. The same is true in Shiver & Barnett v. Firemens Ins. Co., 60 Ga. App, 57 (2 SE2d 760).
We think, too, that the observation of Justice Simmons in
Western & A. R. Co. v. Morrison,
102 Ga. 319, 342 (29 SE 104, 40 LRA 84, 66 ASR 173), is pertinent: “It did not appear that this party had any better knowledge of the facts in issue than did the witnesses upon whose testimony he chose to rely, nor that he had an exclusive knowledge of facts he desired to conceal. Therefore, [in
Thompson v.
Davitte] this court held that the trial judge
properly refused to charge as requested.”
(Emphasis supplied.) Nothing in this record indicates that Mr. Dixon had any
better knowledge
or any
exclusive knowledge
as to how the collision in question may have occurred. To the contrary it is alleged that he was driving the truck in the same direction that plaintiff was traveling, that the truck had passed or was passing plaintiff’s car, and that in changing lanes the truck body struck plaintiff’s car about the left doorpost and windshield. Mrs. Maloy testified that it was the dump body (which is behind the cab) that struck her car. That places Mr. Dixon behind the wheel on the left side of the truck and charges that the right side of the truck body, to his rear, struck the left side of plaintiff’s car — which plaintiff was driving at the
In
Wood v. Wilson,
145 Ga. 256 (4) (88 SE 980) the court simply held that evidence was admissible to show that a party, now deceased, had heard certain testimony on a former trial of the case and had failed to refute or to deny it, although he was in position to have peculiar knowledge concerning the matter. No charge or failure to charge was in question. And it was held in
Cotton States Fertilizer Co. v. Childs,
179 Ga. 23, supra, that it was error to refuse a request to give the principle in charge in a case where a creditor sought to set aside a conveyance from a husband to his wife, charging that it had been fraudulent and without consideration, the wife not appearing to testify concerning the consideration which she may have paid for the land. The court pointed out that in the circumstances of that case “the onus is on the husband and wife to show that the transaction was fair” under
Code
§ 3011 (now § 53-505). In the case sub judice there was no burden on the defendant to show that he was not negligent; the burden was on the
In none of the cases relied upon by appellants was the situation one where there had been a verdict for the plaintiff, and the plaintiff was seeking to set it aside, invoking a failure to charge or to honor a request to charge the principle of Code § 38-119, and in none of them could the harmless error rule have been applied.
Error is enumerated on the failure to give the requested charge because “the defendant failed and refused to call the witness Joseph McIntosh to testify.”
A close and careful reading of the transcript and all of the record properly before this court does not reveal that such a witness existed. He is neither mentioned nor referred to, by name or otherwise, in the pleadings or in the testimony or documentary evidence introduced upon the trial. There is not the slightest inference that there was such a witness. Consequently, this enumeration of error is wholly unfounded in the record and is without merit.
Moreover, even if there had been mention of this witness and it had appeared that he might be a witness for the defendant, there does not appear anywhere in the record a showing that he “was in any way under the power and con
Nor is there anything in the record properly before this court to indicate that the alleged witness, Joseph McIntosh, “knew anything of the matters in issue, or that such [man was] at the time of the trial within the control or even in the employment of the defendant,” and thus “where it does not appear that either party has suppressed evidence within his power to produce, it is error to charge the jury” the principle of Code § 38-119. Central of Ga. R. Co. v. Bernstein, 113 Ga. 175 (5) (38 SE 394). “Where it does not appear that a party has held back evidence within his power to produce, the nonproduction of more full and definite evidence than he presents raises no presumption against him, and there should be no charge given to the jury on the subject of such presumption. Schnell v. Toomer, 56 Ga. 168 (4); Shields v. Ga. R. &c. Co., 1 Ga. App. 172 (2), 176 (57 SE 980); Central of Ga. R. Co. v. Bernstein, 113 Ga. 175 (5) (38 SE 394).” Bank of Emanuel v. Smith, 32 Ga. App. 606 (1) (124 SE 114). See also Southern R. Co. v. Acree, 9 Ga. App. 104 (70 SE 352). Cf. Anderson v. Southern R. Co., 107 Ga. 500 (2) (33 SE 644). This enumeration is wholly lacking in merit.
Error is enumerated on the refusal of the court to allow a re-opening of the case for the purpose of permitting plaintiffs to call the defendant for cross examination after plaintiffs and defendant had closed.
This is a matter within the discretion of the trial judge, who is in full charge of the conduct of the trial, as appellants concede — they simply contend that the judge abused his discretion. We cannot so find. A plaintiff is permitted, at any time he may choose in the making out of his case, to call the opposite party for cross examination.
Code Ann.
§ 38-1801. He may take his deposition before trial, and use the deposition, or he may call the opposite party to the
It is for plaintiff and his counsel to decide when he will close his case, and whether he will close it before he has called the opposite party for cross examination. But, having made that decision and announced it to the court he is bound by it and may be released from it only in the judge’s discretion. The judge should exercise the discretion if and when it appears to him that it would be a manifest injustice to refuse it. However, it is not generally error to refuse a re-opening of the case after both parties have closed. Greer v. Caldwell, 14 Ga. 207 (58 AD 553); Beale v. Hall, 22 Ga. 431; City of Macon v. Harris, 75 Ga. 761; Ga. R. & Bkg. Co. v. Churchill, 113 Ga. 12 (3) (38 SE 336); Harden v. Central of Ga. R. Co., 21 Ga. App. 218 (94 SE 263); Ricker v. Brancale, 113 Ga. App. 447 (2) (148 SE2d 468). In Bartell v. Del Cook Lumber Co., 108 Ga. App. 592, 602 (133 SE2d 903), we stated that “The truck driver could have been called as a witness for the plaintiffs during the presentation of their evidence in chief as a matter of right. The matter of whether or not he could be called upon to testify for the purposes of cross examination in rebuttal after both sides had rested, however, was within the sound discretion of the judge,” and we then proceeded to hold that there had been no abuse of discretion in denying a reopening of the case for that purpose. That situation and the present one are so similar that we are constrained to hold no abuse to have occurred here either.
Appellant’s counsel stated in oral argument on appeal that failure to call the defendant for cross examination
Error is enumerated on the refusal of the court to give a requested charge that “where personal injuries exist, our law infers that pain and suffering will result from such injuries.”
It is not error to refuse a request to charge, or to fail to give it in the exact language thereof, when it is adequately covered in the general charge.
Hardwick
v.
Price,
114 Ga. App. 817, 821 (152 SE2d 905);
Carnes v. State,
115 Ga. App. 387, 393 (154 SE2d 781);
King v. Faries,
120 Ga. App. 393 (170 SE2d 747). “Where the instructions sought are plainly implied in those given to the jury, failure to charge
In the general charge the court instructed that Mrs. Maloy sought to recover for pain and suffering, contending that she suffered great pain, had continued to do so since the date of the accident, and would do so in the future, and that her suffering was due to the injuries received; that the jury would determine from the evidence “what sort of injuries she received, its character as to producing or not producing pain, the mildness or intensity of the pain, its probable duration, whether it has ceased or whether it continues to this date and whether it may continue in the future,” and that they should award such damages as they might find would afford just compensation for “both physical and mental pain and suffering due to the injury received on this occasion.” This, in our opinion adequately covered the substance of the request, and there was no error in refusing it.
Appellants contend that they were entitled to a new trial because the amount of the verdict was grossly inadequate. The jury returned a verdict for Mrs. Maloy for $3,500, and separately a verdict for Mr. Maloy for $3,163.20.
On appeal the evidence is to be construed to sustain, rather than to destroy, the verdict, for every presumption and inference, is in its favor. Southern R. Co. v. Brock, 132 Ga. 858, 862 (64 SE 1083); Y. M. C. A. v. Bailey, 112 Ga. App. 684, 690 (146 SE2d 324); Dodd v. Newton, 122 Ga. App. 720 (2) (178 SE2d 567).
Mrs. Maloy sought recovery for loss of earnings following the accident, and for her pain and suffering. She testified
Moreover, the jury was authorized to consider whether the plaintiff’s negligence may have caused or contributed to her injuries. She testified that she did not see the truck until just as the collision occurred, and thus the jury could have concluded that she had not kept a proper lookout ahead, or may not have had her car under proper control, and was not in the exercise of proper care for her own safety. She alleged, and to some extent her testimony supported it, that the collision had occurred when the truck body struck the doorpost of her car going forward and past her, but a photograph of her car which plaintiffs introduced in evidence shows that the doorpost was bent backward, indicating that the car had been driven forward into the truck. There was a charge on comparative negligence, to which no exception was made. “Where the evidence authorizes the jury to find that both parties are at fault, but the defendant slightly more so, so as to give the plaintiff a cause of action, a verdict for a small amount of damages is proper and should not be disturbed. Flanders v. Meath, 27 Ga. 358, 361; Evans v. Central of Ga. R. Co., 38 Ga. App. 146 (142 SE 909).” Hunt v. Western & A. R., 49 Ga. App. 33, 34 (174 SE 222). And see Head v. Ga. Power Co., 70 Ga. App. 32 (1) (27 SE2d 339); Baggett v. Jackson, 79 Ga. App. 460 (3, 4) (54 SE2d 146); Tanksley v. Welch, 125 Ga. App. 365 (1) (187 SE2d 563).
If these items were the property of Mrs. Maloy, the verdict was sufficient to have included them, even without application of the rule of comparative negligence.
For the same reasons the verdict for Mr. Maloy in a sum equivalent to the total of his listing of “medical expenses,” including the clothing, glasses, and the diamond earring, does not reveal an inadequacy in the verdict, or that it did not include some amount for his loss of consortium. Johnson v. Cook, 123 Ga. App. 302 (1) (180 SE2d 591); Pierson v. M. & M. Bus Co., 74 Ga. App. 537, 540 (40 SE2d 561); McBowman v. Merry, 104 Ga. App. 454 (1) (122 SE2d 136); Beecher v. Farley, 104 Ga. App. 785 (1) (123 SE2d 184); Murray v. Woods, 106 Ga. App. 267 (126 SE2d 828); Stynchcombe v. Gooding Amusement Co., 110 Ga. App. 864, 865 (140 SE2d 232).
Pretermitting the matter of whether the mere listing of the claimed “medical expenses” without submission and
It is to be noted, however, that the jury is not bound by the estimates or opinions of the party who testifies as to value, or as to the amount of his damage, even when there is no counter proof, and they may place a lower value or amount upon the items than the witness has stated. Chalker v. Raley, 73 Ga. App. 415 (37 SE2d 160); Ga. Northern R. Co. v. Battle, 22 Ga. App. 665 (1) (97 SE 94). Here the jury may very well have concluded that Mr. Maloy’s estimates of some of the items of special damages concerning which he testified were excessive, and have reduced them to what they conceived to be an appropriate amount and added to that result an amount for his loss of consortium which, by happenstance, brought the verdict to an amount equivalent to the total of his estimates, and this even without the application of the comparative negligence doctrine.
As we have already noted, the jury was authorized to apply the comparative negligence doctrine, and in doing so was authorized to reduce the recovery for items of special damage, as well as for loss of consortium, in an amount proportionate to the negligence of Mrs. Maloy, if they should find her to have been negligent.
We cannot say that the verdict for Mr. Maloy did not include some amount for his loss of consortium, and the only measure for loss of consortium is, like that for pain and
We cannot say that the verdicts were inadequate.
The general grounds of the motion for new trial are without merit.
Judgments affirmed.
Deen and Clark, JJ., concur.
Notes
The burden of proof rests upon the plaintiff to establish the negligence of the defendant and its causal relation to the claimed injury and damage.
Code
§ 38-103;
Brown v. City of Atlanta,
66 Ga. 71 (2);
White v. Executive Committee of Baptist Convention,
65 Ga. App. 840 (2) (16 SE2d 605);
McKinney v. Burke,
108 Ga. App. 501 (2) (133 SE2d 383);
Miller v. Dean,
113 Ga. App. 869 (1) (150 SE2d 191). “The law raises no presumption whatever as to who was to blame. The burden is on the plaintiff to show that the defendant was negligent.”
Chenall v. Palmer Brick Co.,
117 Ga. 106, 108 (43 SE 443). “It is never to be presumed that a person will commit a wrongful act or will act negligently or improperly. Nothing to the contrary appearing, it is to be
A
kindred and similar rule is that errors in the giving of a charge, failure to charge, denial of requests to charge, or in the admission or exclusion of evidence, which go only to the matters of damages or the measure of damages, are harmless and afford no ground for reversal where a verdict was returned in favor of the defendant.
Edwards v. Block,
73 Ga. 450 (3);
McBride v. Ga. R. &c. Co.,
125 Ga. 515 (1) (54 SE 674);
Robinson v. Murray,
198 Ga. 690 (2) (32 SE2d 496);
Carstarphen v. Central of Ga. R. Co.,
8 Ga. App. 162 (68 SE 848);
Binder v. Ga. R. &c. Co.,
13 Ga. App. 381 (2) (79 SE 216);
Jackson v. Merritt Hdw. Co.,
26 Ga. App. 747 (1) (107 SE 394);
Livsey v. Ga. R. &c. Co.,
19 Ga. App. 687 (91 SE 1074);
Howard v. Ga. R. & Power Co.,
35 Ga. App. 273 (8) (133 SE 57);
Wallace v. Howard,
58 Ga. App. 428 (1) (198 SE 812);
Davies v. West Lumber Co.,
32 Ga. App.
On appeal “[i]t is the duty of this court to construe the evidence most strongly in support of a verdict which has been approved by the trial judge. Brown v. Meador, 83 Ga. 406 (9 SE 681).” Associated Mutuals, Inc. v. Pope Lbr. Co., 200 Ga. 487, 496 (37 SE2d 393). We have applied this principle to our consideration of the evidence throughout the opinion.