Dawson v. Garner

Jordan, Presiding Judge.

1. This case would have been another casualty of Hill v. Willis, 224 Ga. 263 (161 SE2d 281) as interpreted by this court in Crowley v. State, 118 Ga. App. 7 (162 SE2d 299) and Daniels v. State, 118 Ga. App. 111 (162 SE2d 764) as well as other cases, since the appeal is from the verdict and judgment and not from the order overruling the motion for new trial. However, the recent statement in Tiller v. State, 224 Ga. 645 (164 SE2d 137) saves the case since it comes under one of the situations requiring the court to take jurisdiction and decide the questions raised.

Here there was an appeal from an appealable judgment (that rendered on the verdict of the jury) and an enumeration of error on the ruling on the motion for new trial. This brings the case squarely within the language of Tiller, to wit: “or, second, by filing the notice of appeal from other appealable judgments and enumerating as error the ruling on the motion for new trial.” Also, see Staggers v. State, 224 Ga. 839 (165 SE2d 300).

It is noted that the appellant went on to enumerate as error number 2 the exception to the charge which was specifically included as a ground in the amended motion for new trial. This is sufficient to preserve his right of appellate review on this point, and would be in accordance with the clear intent of the legislature as set forth in Section 13 (d) of the Appellate Practice Act as amended. Ga. L. 1968, pp. 1072, 1074.

Code Ann. § 6-1205 sets out the forms for enumerations of error and makes them sufficient without any reasons being given. Code Ann. § 6-810 says enumerations of error “need not conform to the assignments of error abolished by these rules.” The appellant here enumerated error on the overruling of the amended motion for new trial. He did not need to give any reason why he considered the ruling error. He did give reasons which are applicable to the general grounds, but this part of the enumeration of error was not necessary, under the provisions of Code Ann. §§ 6-1205 and 6-810, and is mere surplusage, and has nothing to do with the enumeration of error as such.

Under such enumerations as are before this court it is clear that the appellant presents to this court for consideration the overruling of the motion for new trial as to the general grounds as well as the sole special ground.

2. As to the general grounds, the evidence was sufficient to authorize the verdict.

3. The sole special ground complains of that portion of the charge given as follows: “The phrase, 'full value of life,’ refers to financial value of the life of the decedent, and it is construed to mean the gross sums the deceased would have earned to the end of her life, had she not been killed, reduced to its present cash value,” on the ground that the deceased was not earning wages at the time of her death. There was testimony that she had been previously employed in a hosiery mill and that her husband was at the time of the trial paying approximately $30 per week for household work performed by his wife prior to her death. In view of this evidence and the qualifying charge immediately following the above quoted portion to the effect that the jury in arriving at the full value of the life of the decedent may consider “any wages she received or money earned,” we find no error. The charge, taken as a whole, was not confusing or misleading to the jury as contended.

Submitted October 9, 1968 Decided March 10, 1969 Rehearing denied April 3, 1969. Richter & Birdsong, A. W. Birdsong, Jr., E. W. Fleming, for appellants. Sims & Lewis, James R. Lewis, Howe As Murphy, D. B. Howe, Jr., for appellee.

Judgment affirmed.

Felton, O. J., Bell, P. J., Hall, Deen and Whitman, JJ., concur. Eberhardt, Pannell and Quillian, JJ., dissent.