60 Ga. App. 449 | Ga. Ct. App. | 1939
Lead Opinion
Willie Tharpe, a minor, by and through his father, George Tharpe, as his next friend, instituted suit by attach
The plaintiff demurred generally to paragraph 7 of the plea and answer on the ground that it set forth no legal defense to the plaintiff’s suit, and also orally moved, in the nature of a general demurrer, to strike this paragraph of the defendant’s plea and answer. The court overruled the demurrer and the motion. The plaintiff excepted to the judgment overruling the demurrer. The case proceeded to trial on the issues made by the plaintiff’s petition and the defendant’s plea and answer including the plea of settlement.
There was adduced on the trial evidence of negligence by the defendant, injury to the plaintiff, and the nature and extent of the plaintiff’s injuries. It appeared from the evidence that the plain
The plaintiff moved for a new trial on various grounds, among them being that the court erred in admitting, over the plaintiff’s objections, the evidence in support of the plea of settlement contained in paragraph 7 of the plea and answer. The court overruled the plaintiff’s motion for new trial, and he excepted.
In so far as paragraph 7 of the plea and answer set up a settlement of any claim 'of the plaintiff’s parents, George and Sophie Tharpe, against the defendant as a defense to the plaintiff’s suit, it set up no valid and legal defense, and was subject to being stricken on general demurrer or motion. It is alleged in the plea that settlement was made with the plaintiff, Willie Tharpe, by which he gave his receipt for $60 which was paid him by the defendant, and other alleged sums of money paid by the defendant for medical and hospital services rendered to the plaintiff. It was also alleged that at the time of this settlement the plaintiff Willie Tharpe was a "small child.”
A small child is necessarily an infant. The plea, in so far as it alleges a contract of settlement made with the plaintiff, Willie Tharpe, a "small child,” alleges a contract of settlement made with an infant. A contract made by an infant which is not connected with the practice by him of any trade or profession by permission of his parent or guardian, or by permission of law, or which is not for necessaries furnished him where the parent or guardian fails or refuses to furnish them, is voidable, and may, at the option of the
Since the plea and answer, as contained in paragraph 7, failed to set out a valid and legal defense to the plaintiff’s suit, it was the plaintiff’s right to have this plea stricken on demurrer, or on motion timely and properly made. Gunter v. King, 46 Ga. App. 297 (2) (167 S. E. 549). The error of the court in refusing to sustain the plaintiff’s demurrer to the plea and answer, and permitting the case to be tried on the issue made by the petition and the plea and answer, was not cured by the action of the court, after admitting evidence of the settlement tending to support the allegations of the plea and answer, in instructing the jury to disregard paragraph 7 of the plea and answer setting up the contract of set
4. Where the contentions of the parties to a suit are not complicated and can be easily ascertained by the jury from an inspection of the pleadings, the court sufficiently states the contentions of the parties by referring the jury to the pleadings. Holloway v. Milledgeville, 35 Ga. App. 87 (132 S. E. 106); Brisendine v. Hunt, 43 Ga. App. 115 (6) (158 S. E. 469); Central of Ga. Ry. Co. v. McKinney, 118 Ga. 535 (45 S. E. 430); Jones v. McElroy, 134 Ga. 857 (3) (68 S. E. 729, 137 Am. St. R. 276). Where a plaintiff sues for damages for personal injuries, which he alleges consist of the breaking of his leg and bruises and lacerations on his body, as
Where the court charged the jury that the plaintiff could not recover except on the alleged negligence of the defendant, and that if the plaintiff was injured by the alleged negligence of the defendant and such alleged negligence was the proximate cause of the plaintiff’s injuries and damages, the plaintiff would be entitled to recover, but that there could be no recovery if the proximate cause of the plaintiff’s injuries was “an act or acts of the plaintiff,” and that “this is true even as to a plaintiff of such tender years that he can not be charged with any negligence as a matter of law,” the court in effect charged the jury that the plaintiff was a child of tender years, and therefore was not chargeable with any negligence, and that there could be a recovery by the plaintiff if negligence of the defendant, as alleged in the petition, proximately caused the plaintiff’s injuries. The court having charged the jury that the plaintiff as a matter of law could not be charged with any negligence, it was not error, in the absence of a special request, for the court to fail to charge more elaborately, as laid down in the Code, § 105-204, that due care of a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the active
In view of the ruling made on the judgment overruling the plaintiff’s demurrer to paragraph 7 of the plea and answer, it is unnecessary to pass on the assignments of error on the admission of evidence tending to prove the settlement of the plaintiff’s cause of action as alleged in paragraph 7 of the plea and answer.
The judgment is reversed because the court erred in overruling the plaintiff’s general demurrer to paragraph 7 of the defendant’s plea and answer.
Judgment reversed,
Dissenting Opinion
The evidence was in sharp conflict as to whether the injury to the plaintiff was due to the negligence of the driver of the automobile which struck the plaintiff or was due to an unavoidable accident. The only injury sued for was pain and suffering. Under the evidence and circumstances of the case I do 'not think this court should hold, as a matter of law, that the verdict was the result of prejudice or bias, because the jury could have found against the plaintiff, or was inadequate because of -the error in the overruling of the demurrer to the plea of settlement. Presumably the plea was accessible to the jury and could have been read by them. The overruling of the demurrer by the judge and the subsequent ruling which was in effect a reversal of his judgment overruling the plea, and his charge ruling out the evidence, are the same as the court’s ruling out evidence already admitted, on objection or motion of a party. Under the circumstances of the case I am of the opinion that whatever error there was in overruling the demurrer to the plea was cured by the court’s charge, especially in the absence of a motion for mistrial. There was no such correction of the error made in the case of Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga. App. 371 (5) (supra), or in that of Gunter v. King, 46 Ga. App. 397 (167 S. E. 549). See Trammell v. Atlanta Coach Co., 51 Ga. App. 705 (181 S. E. 315); Chunn v. McRae, 43 Ga. App. 417 (159 S. E. 130); Moore v. McAfee, 151