Holcomb v. Kirby , 117 Ga. App. 266 ( 1968 )

Eberhardt, Judge.

Appellant enumerates as error the charging of both Subsections (a) and (b) of Code § 68-1650 (which he now contends are conflicting) “without giving an explanation as to how they should be resolved.” No exception was made to this part of the charge, or as to any failure of the court to charge an “explanation” thereof at any time before verdict, as is required by Code Ann. § 70-207 (a). Consequently, unless error appears that is “harmful as a matter of law” we are not authorized to consider this enumeration. For statements of when an error (if there was one) meets the test for consideration under Code Ann. § 70-207 (c), see Nathan v. Duncan, 113 Ga. App. 630 (6), 636 (149 SE2d 383); Ga. Power Co. v. Maddox, 113 Ga. App. 642 (1) (149 SE2d 393); Hollywood Baptist Church of Rome v. State Hwy. Dept., 114 Ga. App. 98, 99 (3) (150 SE2d 271); Southwire Co. v. Franklin Aluminum Co., 114 Ga. App. 337 (2) (151 SE2d 493); Metropolitan Transit System, Inc. v. Barnette, 115 Ga. App. 17 (1) (153 SE2d 656); Windsor Forest, Inc. v. Rocker, 115 Ga. App. 317, 324 (4) (154 SE2d 627); Moon v. Kimberly, 116 Ga. App. 74 (2) (156 SE2d 414); City of Douglas v. Rigdon, 116 Ga. App. 306 (2) (157 SE2d 66), and Hawkins v. State, 116 Ga. App. 448 (157 SE2d 800). The situation presented here does not meet these tests. Cf. Williams v. State, 223 Ga. 773 (4) (158 SE2d 373).

It does not appear, and it is not contended that any request was made upon the court for any other or further charge than that which was given relative to these statutory provisions. For this reason no error appears. Barnes v. Barnes, 224 Ga. 92 (3); Foskey v. State, 116 Ga. App. 334 (2) (157 SE2d 314); Carroll v. Morrison, 116 Ga. App. 575 (4) (158 SE2d 480); Gilmore v. State, 117 Ga. App. 67 (1).

As we understand the dissent, it is not found, as contended, that the two subsections of this statute are conflicting. Rather, the view is that each is appropriate to a different state of facts, and that the evidence, being conflicting, presents each state of facts. With that we agree. Consequently, the charging of each subsection was appropriate. A contrary holding is not to be found in Ivey v. Hall, 77 Ga. App. 350 (48 SE2d 788), where the charge was not in the language of the statute, and the court, though finding some “inaptness” in the charge, found no reversible error.

Under the definition of emergency in Seaboard A. L. R. v. McMichael, 143 Ga. 689, 695 (85 SE 891), we think the facts as developed by the evidence in this case authorized a charge on the matter. And see Bryant v. Ga. R. &c. Co., 162 Ga. 511, 517 (134 SE 319) where it was asserted that “The rule judicially stated is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.” And see Ware v. Alston, 112 Ga. App. 627, 629 (145 SE2d 721).

Enumerated error 3 complains of the court’s having injected into the case an issue of whether or not the plaintiff could recover from Mrs. Payne, the host driver, by charging the degree of care Mrs. Payne owed to Mrs. Holcomb and charging that there could be a recovery against either or both of the responsible parties. The court also charged that the negligence, if any, of Mrs. Payne would not be imputable to Mrs. Holcomb if Mrs. Holcomb was a guest passenger; that if Mrs. Holcomb was a guest passenger and that the negligence of both Mrs. Payne and the defendant, if any, combined to cause Mrs. Holcomb’s death, the plaintiff would be entitled to recover even though Mrs. Payne is not a party and even though there was a difference in the degree of negligence, if any, by the defendant on the one hand and Mrs. Payne on the other; that if the sole proximate cause of Mrs. Holcomb’s death was the negligence of the defendant alone, then the plaintiff was entitled to recover; that if the sole proximate cause of Mrs. Holcomb’s death was the negligence of Mrs. Payne alone, then there could be no recovery by the plaintiff. Considering the charge as a whole, this part was not misleading to the jury. See Scholle Atlanta Corp. v. Nealy, 110 Ga. App. 775, 776 (2) (140 SE2d 88), and citations.

Enumerated errors 4 and 5 complain of the court’s refusal to charge the jury in the language of the plaintiff’s written requests numbers 5 and 6. While prior to the adoption of the Appellate Practice Act a court was required to charge an appropriate written request, timely made, in its exact language, the requirement is no longer viable. It was grounded upon Code § 70-207, which was specifically repealed by the Act. Carnes v. State, 115 Ga. App. 387, 393 (6) (154 SE2d 781). The subject matter of the requests was sufficiently covered in the charge.

Moreover, the record does not indicate that exception to the refusal of the requests was properly made. U. S. Security Warehouse v. Tasty Sandwich Co., 115 Ga. App. 764 (1) (156 SE2d 392), and citations.

Judgment affirmed on the main appeal; cross appeal dismissed.

Bell, P. J., Jordan, P. J., Hall, Pannell, Been and Quillian, JJ., concur. Felton, C. J., dissents in part. Whitman, J., disqualified.