53 Ga. App. 418 | Ga. Ct. App. | 1936
The plaintiffs, G. E. Crowe and minor children, brought suit against Shermer and the General Oil Company, for damages on account of. the death of their wife and mother, alleged to have been caused by the negligence of the defendants in selling
The evidence authorized the jury to find that the kerosene causing the explosion that resulted in the death of Mrs. Crowe was sold by Shermer to the defendant oil company, and in turn sold by it to the merchant from whom it was purchased for use by Mrs. Crowe, that it could have come from no place other than the, place of business of this defendant, and that this defendant had a quantity of below-grade kerosene on hand at the time. The fact that Mrs. Crowe attempted to start a fire in a charcoal bucket with such kerosene was not such an unusual and dangerous use thereof as would bar, as a matter of law, a recovery for her death, when it exploded. Standard Oil Co. v. Reagan, 15 Ga. App. 571, 574 (84 S. E. 69). There was evidence that had this kerosene been up to the standard required by the law of this State, it would not have ignited and then exploded as it did. The evidence supported the verdict in favor of the plaintiifs. The amount of the verdict was not attacked as. being excessive.
Our statutes provide that it shall be a misdemeanor for kerosene oil below a certain standard to be sold for cooking, heating, or power purposes. Ga. L. 1927, pp. 279, 283. The judge in effect charged the jury that if the defendant sold “kerosene oil for use or intended to be used in the manner and way in which kero
The court charged the jury that “in the event you find from the evidence that the law as just given you with respect to the selling or vending of kerosene was violated by the defendant Shermer, and you further find that such violation was the proximate or one of the proximate causes of the alleged damage to have been sustained by the plaintiffs, the court charges you that it would be no excuse or defense for the defendant Shermer to show that he did not know that such substance was dangerous or unsuited for the use for which kerosene oil is customarily used. It would likewise be no defense for him to show that he did not know that the substance would flash at a temperature below 115 degrees Fahrenheit.” Shermer assigns this charge as error, in that while there may be several contributing factors, there can be but one proximate cause of an injury, and by this instruction the jury were led to believe that there were more than one proximate cause of the death of plaintiff’s wife; and if they believed that the sale by Shermer of illegal kerosene was one of the contributing factors of her death, the jury could find a yerdief for the plaintiff against this defend
The court did not err in charging the jury that the "defendants, and each of them, . . also contends that . . Mrs. Crowe failed to exercise ordinary care to protect herself against any negligence that may have occurred on the part of the defendants.” The excerpt from the' charge on this question was not calculated to instruct the jury that the defendants admitted that they were guilty of the negligence charged against them. Shermer denied that the deceased exercised ordinary care at the time she received the injuries resulting in her death, and alleged that she was guilty of such contributory negligence as to bar a recovery, and that-her acts were the proximate cause of her death. This instruction was not an incorrect statement of the law in so far as it went, or an incorrect statement of the contentions of this defendant. See Freeman v. Nashville &c. R. Co., 120 Ga. 469 (47 S. E. 931), for the correct rule. The charge on the contentions of the parties, on the question of negligence, failure to exercise ordinary care on the part of the decedent, and contributory negligence, was full, complete and correct. After giving the excerpt complained of here, the court charged that Mrs. Crowe must have been in the exercise of ordinary care to protect herself against any negligence that may have occurred' on the part of the defendants or either of
In the motion for new trial Shermer complains that the court incorrectly charged on the question of damages to be awarded to the husband and minor children of the deceased; that, after instructing the jury that the measure of damages would be the full financial value of the life of the deceased, the court in effect charged that the jury should ascertain the annual earnings of the deceased, multiply this by the number of years she would likely live, thus arriving at the gross value of her life, and that this gross value should then be reduced to its present cash value and awarded as damages to the plaintiffs, if the jury believed that they were otherwise entitled to recover. The charge was not subject to the criticisms directed against it. The charge on this subject, as a whole, was fair, and complete. Code of 1933, §§ 105-1302, 105-1306, 105-1308; Standard Oil Co. v. Reagan, supra.
The court did not err in the charge or recharge on the question of the verdicts the jury could return, in that the jury were not given the provisions of the Code, § 105-2011, that “Where several trespassers are sued jointly, the plaintiff may recover against all, damages for the greatest injury done by either. But the jury may, in their verdict, specify the particular damages to be recovered of each, and judgment in such case must be entered severally.” The court instructed the jury that if they found for the plaintiffs against the defendants, their verdict should be, “We the jury find for the plaintiffs” so much money. The Code section applies to actions against joint trespassers for injury to property, and not an action against joint tort-feasors for damages on account of their negligence. In a case of this character "different sums can not be assessed against different defendants.” McCalla v. Shaw, 72 Ga. 458; Hunter v. Wakefield, 97 Ga. 543 (25 S. E. 347, 54 Am. St. R. 438); Glore v. Akin, 131 Ga. 481, 482 (62 S. E. 580), and cit. The present action by the husband
The court fully and correctly charged the jury on the question of contributory negligence by the deceased, and it was not error to fail to charge again the law applicable to this defense, upon the jury being recalled and requesting the court for additional instructions as to the “verdicts to be returned,” and as to “that part of the charge . . that relates to the responsibility of the two defendants,” the court having recharged the jury in compliance with their requests.
It follows that the judge did not.err in overruling Shermer’s motion for new trial.
Judgment affirmed.