Opinion
44689.
DECIDED DECEMBER 3, 1970.
Action for damages. Fulton Superior Court. Before Judge Etheridge.
Bryan, Carter, Ansley Smith, M. D. McLendon, for appellant.
Gambrell, Russell, Moye Killorin, Edward W. Killorin, Sewell K. Loggins, for appellees.
This court, in its prior opinion written in this case ( Reeves v. Morgan, 121 Ga. App. 481 ( 174 S.E.2d 460)), reversed the trial judge for the reasons given in Divisions 1, 5 and 7. The Supreme Court reversed this court in its rulings in Divisions 1 and 5, and stated in reference to Division 7: "However, the Court of Appeals, in its opinion, expressly refrained from deciding whether the excerpt was so harmful as a matter of law as to require that court to consider it in the absence of an objection. It chose to consider it because of the likelihood of repetition upon retrial." Morgan v. Reeves, 226 Ga. 697, 699 ( 177 S.E.2d 68). Under these circumstances, it becomes necessary to make a further determination with regard to enumeration of error 22 which was the subject of Division 7.
There was no objection made as to the charge excepted to in the enumeration of error and such charge was not harmful as a matter of law so as to bring it within the provisions of Section 17 (c) of the Appellate Practice Act (Ga. L. 1965, pp. 18, 31, as amended; Code Ann. § 70-207 (c)). Thus, the enumeration of error will not be considered by this court.
Judgment affirmed. Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt and Whitman, JJ., concur. Pannell, Deen and Evans, JJ., dissent.
DECIDED DECEMBER 3, 1970.
The trial judge had charged the jury relative to six laws and ordinances pertinent to the situation. Three of these applied to the defendant and three to the plaintiff. One of these, applying to the plaintiff, was that "no person shall ... place himself in any ... roadway in such manner as to impede the normal and reasonable movement of traffic." The trial judge then charged as follows: "Now in this connection, having reference now to the statutes and ordinances I have just alluded to, I charge you that should you find from the evidence in this case that either party violated the law of the State of Georgia or the City of Atlanta, such a violation would constitute negligence perse. And should you further find that that violation, either one or more, if there be any such violation, directly caused or contributed to the event which is the basis of this lawsuit, it would be your duty to find for the party not so guilty of negligence on that particular issue." (Emphasis supplied.) The jury could have found that the defendant driver of the automobile was proceeding along the road without violating the ordinances or laws charged by the trial judge and that the act of the plaintiff in crossing this road was impeding the movement of the defendant's automobile. Under these circumstances the jury, under the charge complained of, would be required to find against the plaintiff, even though there might be clear negligence on the part of the defendant which was not negligence per se. Further, this charge entirely eliminated from the case the doctrine of comparative negligence in so far as it might relate to negligence per se and was harmful as a matter of law. While the trial judge charged generally the law of comparative negligence, this charge dealing with particulars as to negligence per se completely eliminated it from consideration if any negligence per se was found.
In Williams v. State, 223 Ga. 773, 775 ( 158 S.E.2d 373), the Supreme Court ruled: "Clearly the charge, to which no objection was made on failure of the court to charge the effect of the testimony of the defendant, was not harmful as a matter of law, which under Ga. L. 1966, pp. 493, 498 ( Code Ann. § 70-207 (c)), would be required for this court to reverse for failure to give additional instruction." It seems to me that the charge in the case here was clearly harmful as a matter of law and was a substantial error. I also call attention to Childs v. Childs, 223 Ga. 435, 437 ( 156 S.E.2d 21), in which it was stated: "While no objection was made by counsel for the appellant to the instruction that a divorce could be granted to both parties, this charge specifically authorized an invalid verdict, and it was a `substantial error' within the meaning of Ga. L. 1966, pp. 493, 498 ( Code Ann. § 70-207 (c)), which is subject to review." See also Gunter v. State, 223 Ga. 290, 293 ( 154 S.E.2d 608).
It seems that the Supreme Court is construing Section 17 (c) of the Appellate Practice Act ( Code Ann. § 70-207) considerably differently from the decisions of this court. See Nathan v. Duncan, 113 Ga. App. 630 (6) ( 149 S.E.2d 383); Franklin v. State, 114 Ga. App. 304 (1) ( 151 S.E.2d 191). We are bound by the decisions of the Supreme Court. In my opinion, however, the charge here meets the requirements set forth in our own cases. The judgment should be reversed.
I am authorized to state that Judges Deen and Evans join in this dissent.
I concur in Judge Pannell's dissent. However, I wish to add the following comments.
The charge of the court to the jury, as set forth in Judge Pannell's dissenting opinion, in my opinion was further erroneous for two additional reasons, to wit: (1) It was argumentative in suggesting that if the jury found one party guilty of violating a public law or statute, "... it would be your duty to find for the party not so guilty of negligence on that particular issue" — whereas the court should have instructed the jury that its duty was to determine whether one or both violated such public law or ordinance, without intimating that if one was guilty the other was innocent. (2) It was erroneous in that it suggested to the jury that negligence per se is necessarily greater than negligence as a matter of fact, which is not the true rule. Negligence per se may be less, equal to, or greater than negligence as a matter of fact, depending on the circumstances. See Jones v. Tanner, 26 Ga. App. 140, 142 ( 105 S.E. 705); Schofield v. Hatfield, 25 Ga. App. 513 ( 103 S.E. 732); Louisville N. R. Co. v. Stafford, 146 Ga. 206, 209 ( 91 S.E. 29).