DocketNumber: A90A2149
Citation Numbers: 405 S.E.2d 290, 199 Ga. App. 452
Judges: Andrews, Banke, Beasley, Birdsong, Carley, Cooper, McMurray, Pope, Sognier
Filed Date: 3/15/1991
Status: Precedential
Modified Date: 8/21/2023
Gordon Heath brought suit against L. E. Schwartz & Sons, Inc. (“Schwartz”) and Samuel Mays, seeking damages for injuries he allegedly incurred in a collision between the van Heath was driving and the truck driven by Mays and owned by Schwartz. The jury awarded Heath $516,961.41. Apparently unsatisfied with the verdict, Heath appeals.
The transcript reveals that at the time of the accident in March 1987, appellant was 54 years old and was driving a van specially equipped to accommodate appellant’s wheelchair, which he had been using since contracting polio in 1949. The evidence sharply conflicted whether the collision that occurred was unavoidable, and the $768,830.42 in special damages claimed by appellant as resulting from the collision were vigorously contested.
Pretermitting the question whether the incompleteness of appellant’s request to charge no. 11 (its final sentence limiting consideration of affirmative defenses to contributory negligence, without addressing the burden on a defendant to prove the affirmative defense of comparative negligence) provided a basis for the trial court’s refusal to give the requested charge, even assuming, arguendo, that the trial court’s failure to give appellant’s request to charge was error, that error does not require reversal here. “ [I]t has long been the rule that when a verdict has been returned in favor of the plaintiff, errors in the giving of the charge, in omissions from the charge or in the refusal of requests which go to the matter of liability only are harmless to the plaintiff and afford no ground for reversal at his instance. [Cits.]” Maloy v. Dixon, 127 Ga. App. 151, 155-156 (2) (b) (193 SE2d 19) (1972). Because contributory negligence, as explained in the instruction given the jury in the case sub judice, serves to bar a plaintiff from recovering any damages when the jury determines that the plaintiff’s negligence was the sole proximate cause of his own injuries, it follows that the jury must have rejected the theory of contributory negligence when it renders an award of damages in the plaintiff’s favor. Hence, case law has long noted that an award of damages “renders harmless any error committed by the court in charging the jury on . . . contributory negligence. [Cits.]” Butler v. Anderson, 163 Ga. App. 547 (2) (295 SE2d 216) (1982). The harmless nature of such an
The cases relied upon by appellant in support of his argument, Meacham v. Barber, 183 Ga. App. 533, 535-536 (2) (359 SE2d 424) (1987) and Whitehead v. Seymour, 120 Ga. App. 25, 26 (1) (169 SE2d 369) (1969), are distinguishable by the fact that the verdicts rendered therein were in favor of the defendants, not the plaintiff. Nor do we find any merit in appellant’s argument seeking to distinguish the principle set forth in Maloy and Butler, supra, on the basis that the omitted charge here did not involve liability simply because it may have impacted on the amount of damages awarded by the jury. The requested charge’s omission in an otherwise applicable instruction on contributory negligence can hardly be said to have more impact on the jury’s decision on damages than a situation, such as in Butler, supra, in which an abstractly correct, but otherwise inapplicable, charge on contributory negligence is given.
Contrary to the dissent’s position, we cannot reach the issue whether reversible error was committed by the trial court’s failure to give appellant’s requested charge in regard to appellees’ burden of proof as to the affirmative defense of comparative negligence, in that (1) appellant’s requested charge (which ultimately limited consideration of appellees’ burden of proof only to the affirmative defense of contributory negligence, without mentioning comparative negligence), even had it been given, would not have corrected the alleged error regarding appellees’ burden of proof as to comparative negligence, see generally Marlow v. Lanier, 157 Ga. App. 184, 185 (276 SE2d 867) (1981) (party cannot complain if trial court gives incomplete charge where incompleteness arose from instructions requested by party), and (2) appellant’s enumeration does not encompass any error in regard to the trial court’s failure to charge the jury regarding a defendant’s burden to prove the affirmative defense of comparative negligence. See generally Jones v. Farrington, 194 Ga. App. 10, 11 (3) (389 SE2d 776) (1989) (enumeration of error may not be enlarged to include issues not set forth in the enumeration). Nor do we agree that the sequence of the charges given by the trial court, by first informing the jury how damages could be apportioned should they find both parties were negligent (comparative negligence), then second informing the jury that plaintiff could recover nothing if his negligence was the sole proximate cause of his injuries (contributory negligence), somehow caused the contributory negligence charge as given to mu
Judgment affirmed.