Opinion
36771.
DECIDED JULY 11, 1957.
Tort; injuries sustained in hotel. Before Judge Whitman. Fulton Superior Court. April 4, 1957.
Wilson, Branch Barwick, M. Cook Barwick, Thomas S. Bentley, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers McClatchey, contra.
The court did not err in denying the motion for new trial as to the general or special grounds.
DECIDED JULY 11, 1957.
Allen C. Day brought suit against the Piedmont Hotel, Inc. The jury returned a verdict in favor of the defendant. The plaintiff's amended motion for new trial was denied and he excepts.
The evidence is substantially as follows: Allen C. Day testified that in July, 1954, he was in room 1014 at the Piedmont Hotel in Atlanta (the defendant here) where his boss, Mr. Brinson, was engaged in a telephone conversation with a customer; that Mr. Brinson asked him to take the telephone and talk with said customer, taking down various information and "I went to the telephone and started listing commodities pertaining to the various movements we had, we were discussing them; and this was all very close work, and I was writing down destinations, and I got tired, I was giving out, and I was holding the book in my left hand and writing with my right hand, and I sat down, and when I did the chair wobbled down, and I was pushed, depending on the chair to catch me, and it fell and hit me in the back." He further testified that he saw the chair before but had never sat in it; that the shock of the fall was so terrific that he could not finish the telephone conversation and that since the accident he has suffered much pain, loss of sleep, loss of weight, and has been partially disabled, must wear a brace and has not been able to function fully in his job, causing loss of commissions. On cross-examination he testified substantially: that the next day he examined the chair, picked it up and looked at it and found it to be wobbly. He did not remember whether it was broken or bent. On redirect examination he testified substantially: that the chair looked similar to the exhibit chair and when he observed the chair the day after the accident it appeared "more or less tilted toward me." When asked if it was the same chair or not, witness replied, "As far as I could see, I was talking over the phone, and I just saw the chair behind me, and I just sat down before I thought."
Mr. Kilgore, a witness for the plaintiff, testified substantially: that he saw the chair in the room the next day; that he had examined it and found it weak; that it looked very much like the exhibit chair, though not as strong.
A witness for the defendant, Mr. Bland, manager of the Piedmont Hotel at the time of the accident, testified substantially: that he first learned of Mr. Day's accident approximately three weeks later, at which time he went up to room 1014, examined every piece of furniture and found nothing wrong; that the exhibit chair was in the room and is in the same condition as it was when he found it on the day three weeks after the plaintiff's accident and that nothing had been done to it. On cross-examination he testified substantially: that the procedure in the hotel is to have their inspectress check the rooms; that she checks about 200 rooms, does not sit in the chairs, and relies on maids to tell of any needed repairs other than obvious ones, such as loose parts on chairs. Counsel for the plaintiff said at this point that when they were talking with the manager about the accident they were not sure at the time whether it was a metal chair or a wooden chair. Counsel asked the manager if he could swear that no one tightened up the chair between the time the plaintiff was injured and the incident was reported to him three weeks later. Witness answered, "I could."
Mrs. Mamie Dean, inspectress at the Piedmont Hotel, a witness for the defendant, testified substantially: that she was certain the exhibit chair came out of room 1014 and had been there ever since she had been there, some three years. On cross-examination she testified substantially: that not a piece of furniture had been repaired in the hotel going on three years she has been there except maybe a split bed rail; that maybe arms of chairs tightened, but never legs to her knowledge.
The plaintiff's employer, Mr. Brinson, testified on cross-examination substantially as follows: that on the day of the plaintiff's accident he had answered the telephone in the hotel room and was talking with a Mr. Morrison, an old acquaintance and customer of his firm. After extending greetings he got into the matter of a quotation. They were very anxious to secure Mr. Morrison's movement of traffic and when he got into the details he said, "Well, Mr. Day had better take down the pertinent information, as he's going to have to handle with the Southern Motor Carriers Rate Conference to publish in the tariffs a confirming quotation which we made verbally. And in doing so, I handed the telephone to Mr. Day and he was taking notes there, and instead of being one or two points, it was several points involved . . . When Mr. Day was reaching in his pocket getting his pencil out to make a notation as to what points to cover in this special quotation to be covered by a government rate sheet, and there was a chair sitting next to the telephone, which was located on a little table, normal table by the bed as in most hotel rooms, and as he started to sit down, the chair that he was going to sit in just wobbled and collapsed, fell out from underneath him. The top part of the chair apparently hit him in the back and at that time he fell onto the floor. I picked up the phone and told Mr. Morrison that Mr. Day had fallen on the chair that he was about to sit in, and found out that we needed to make the quotations and finished the conversation with Mr. Morrison." He further testified: that he examined the chair the next morning and found it unstable; that he reported it to the cashier when he checked out that day, saying: "One of my associates had fallen on a chair the night before and they should take it out of the room because it wasn't safe."
1. Although the evidence is contradictory in some respects, there is sufficient evidence to sustain the verdict of the jury as to the general grounds.
2. Special ground 1 assigns error because it is contended that the court erred in excluding from evidence the testimony of the plaintiff as to his previous earnings made on commissions with another company while doing practically the same job or filling practically the same position.
The court ruled that such testimony was immaterial and irrelevant in that it amounted to a conclusion and was too remote and speculative to be a basis for the amount of recovery. It is our opinion that the exclusion of this testimony was not harmful to the plaintiff. This special ground shows no cause for reversal.
3. Special ground 2 assigns error because it is contended that the court erred in charging the jury twice on the principle of law relating to whether or not the plaintiff was injured by his own negligence. Two short excerpts are set out in this special ground. We have read the charge of the court in its entirety and find that the court charged fully on this point and that there was sufficient evidence to warrant such charge. We have set out the evidence substantially hereinabove in detail as to how the plaintiff was doing several things at one time when he decided to sit in a chair without looking at it. We think this is sufficient to warrant the charge of which complaint is made in this ground. Special ground 2 is not meritorious.
4. Special ground 3 contends that the court erred in failing to give the proper charge on comparative negligence, without a timely request. The court charged fully on the care owed by an innkeeper to patrons using premises, and charged fully on the duty of the plaintiff to exercise ordinary care and diligence for his own safety. The court charged in regard to liability incurred in the event either party failed to use the care which the law imposes on each respectively. The court charged on proximate cause and the results which naturally follow when negligence is shown. The court charged fully as to when a plaintiff is not entitled to recover under circumstances covered by the evidence. The particular complaint in this special ground is that the court charged that if the plaintiff was injured "solely by his own negligence" he would not be entitled to recover. Emphasis is laid by counsel on the word solely. We cannot see that the use of the word solely was harmful to the plaintiff, in view of the apparently careful, complete and extensive charge of the court on the principle of law regarding negligence of either or both parties. This special ground is not meritorious.
5. Special ground 4 contends that the court erred in charging that the plaintiff could not recover damages for any diminished earning capacity in the future. It is elementary that under pleadings such as we have in this record diminished earning capacity in the future cannot be a basis of recovery as a separate item, but when evidence shows that this is set up as a part of the basis for recovery then the court must charge on this point as well as on other points involved under the pleadings. This special ground shows no cause for reversal.
6. Special ground 5 assigns error because the court erred in charging with reference to the recovery of damages "for alleged pain and suffering, past, present and future." It is contended that the court should have gone further and explained the alleged present pain and suffering of the plaintiff. It is our opinion that the phraseology: "alleged pain and suffering, past, present and future" covers this contention sufficiently and this special ground is not meritorious.
The court did not err in denying the motion for new trial for any reason assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.