Overton v. Phillips , 54 Ga. App. 441 ( 1936 )

Broyles, C. J.

1. The motion to dismiss the writ of error is denied.

2. Emma Jane Overton filed a suit in’ damages from personal injuries, against George W. Phillips, and obtained a verdict and judgment. Her petition against the defendant alleged ordinary negligence, and wilful and wanton negligence, but on the trial the judge instructed the jury as follows: “‘The court withdraws from your consideration the plaintiff’s claim for punitive damages in this ease.” Within four months after the date of the verdict and judgment the defendant filed his petition in bankruptcy, and was duly discharged. Thereafter the plaintiff brought a garnishment against the defendant, who filed a plea for a stay of that proceeding, on the ground of his discharge in bankruptcy. The court, after introduction of evidence by both parties, rendered judgment for the defendant. The sole question now for decision is whether the charge to the jury, as above quoted, eliminated from the ease the question of wilful or wanton negligence by the defendant, since the plaintiff’s sole contention is that the evidence showed that in injuring the plaintiff the defendant was guilty of wilful and wanton negligence, and therefore, under the bankruptcy act (subdivision see. 17a(2) of the act of July 1, 1898, 30 Stat. 550, U. S. Comp. Stat. § 9601), his discharge in bankruptcy was not a discharge from the liability charged in this case. Held, that the question of wilful and wanton negligence of the defendant was withdrawn from the jury and eliminated from the case by the charge of the court. The court did not err, in the garnishment case, in holding “that the judgment upon which the garnishment was issued was based upon ordinary negligence, and not upon wilful and wanton negligence,” and in granting a permanent stay of the garnishment proceeding.

Decided October 29, 1936. Ben O. Williford, for plaintiff. II. A. Allen, for defendant.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.