Opinion
44020.
SUBMITTED OCTOBER 9, 1968.
DECIDED MARCH 28, 1969. REHEARING DENIED APRIL 4, 1969.
Action for damages. DeKalb Superior Court. Before Judge Hubert.
Dunaway, Shelfer, Haas Newberry, William S. Shelfer, Sr., William S. Shelfer, Jr., for appellants.
Wilkinson, Nance Head, A. Mims Wilkinson, Jr., Zachary Hunter, John C. Hunter, for appellee.
1. The purported amendment to the enumeration of errors, not being timely filed, is not considered, but the original enumeration of errors is sufficient to avoid application of the law of the case rule with respect to issues asserted therein and also included in the motion for new trial.
2. Disregard of the best-evidence rule under the circumstances here shown is not harmful error.
3. Under the circumstances here, the error in the instruction to the jury was not so prejudicial as to result in a gross miscarriage of justice so as to bring it within the substantial-error rule set forth in Sec. 17 (c) of the Appellate Practice Act ( Code Ann. § 70-207 (c)).
4. No error is shown in instructing and allowing the jury to consider the issue of permanent injuries.
5. The general grounds are without merit.
SUBMITTED OCTOBER 9, 1968 — DECIDED MARCH 28, 1969 — REHEARING DENIED APRIL 4, 1969.
This is a personal injury action by the driver of the lead vehicle in a rear-end collision. The defendants are the driver of the rear vehicle and her father, the owner of the automobile admittedly being used for a family purpose. The defendants appeal from an adverse judgment.
1. The purported amendment to the enumeration of errors, not filed within the time allowed, will not be considered. Foskey v. Kirkland, 221 Ga. 773 (1) ( 147 S.E.2d 310); Arkwright v. State, 223 Ga. 768, 769 ( 158 S.E.2d 370). The original enumeration of errors was filed within the time allowed, however, and includes in the first numbered paragraph the assertion of error "in not sustaining the motion for a new trial, as amended." The remainder of this paragraph and the remaining numbered paragraphs clearly disclose an intent to preserve the issues made by the general and special grounds of the motion. Accordingly, we regard the original enumeration of errors as sufficient to avoid application of the law of the case rule ( Hill v. Willis, 224 Ga. 263, 268 ( 161 S.E.2d 281); Bryan v. State, 224 Ga. 389, 390 ( 162 S.E.2d 349)) with respect to issues asserted therein and also included in the amended motion for new trial. See Tiller v. State, 224 Ga. 645 ( 164 S.E.2d 137); Gainesville Stone Co. v. Parker, 224 Ga. 819 ( 165 S.E.2d 296); Dawson v. Garner, 119 Ga. App. 469.
2. The second enumeration and the first special ground of the amended motion are based on the refusal of the court to exclude the testimony of the plaintiff concerning the terms of a written contract of employment. Counsel for the defendant objected on the ground that the contract would be the highest and best evidence. It appears from the plaintiff's testimony that when the collision occurred in December, 1965, she had completed a course of study with H. R. Block, Inc., and was eligible for employment with this company during the next income tax filing season, at a rate of $2.00 per hour for 40 hours per week, plus an unknown amount of commissions, and for overtime as required, for as long as needed, until April 15 or later. She testified that she was prevented from accepting this employment because of her injuries. Her counsel exhibited to her a document (P-5) which she identified as the contract, but when it was tendered in evidence, counsel for the defendants indicated he had an objection, and counsel for the plaintiff withdrew the exhibit. We find nothing in the transcript to disclose any further effort to place the exhibit in evidence. While the transcript does disclose a clear disregard of the best-evidence rule ( Code §§ 38-203, 38-205) with respect to the terms of the contract, upon a proper and timely objection to invoke the rule, we do not regard this error as harmful and as one requiring a reversal of the judgment of the lower court. Even when the testimony is viewed in its most favorable light to the plaintiff and accepted as true, it shows nothing more than the loss of $80 per week in potential earnings for some 3 1/2 months, plus a nebulous amount for commissions and overtime, without any guidelines whereby the jury could determine the loss of any amount in excess of $80 per week, and in this respect it is merely cumulative of and more favorable to the complaining defendants than the plaintiff's record of actual earnings before the collision, including $3,588.56 earned as an employee of the Internal Revenue Service from January 1, to August 20, 1965, and earnings of $3.00 per hour as a model.
3. Appellant complains of the giving of requested instructions to the effect that a motorist following another must govern his speed and control his vehicle "so that he can stop without a collision." Such instruction is an incorrect statement of the law in that the language imposes an absolute duty on the following motorist to avoid a collision, when he is bound only to the exercise of ordinary care under all the circumstances. See Hay v. Carter, 94 Ga. App. 382, 384 ( 94 S.E.2d 755); Davenport v. Robinson, 109 Ga. App. 753, 755 ( 137 S.E.2d 380); Attaway v. Morris, 110 Ga. App. 873 (5) ( 140 S.E.2d 214); Thomason v. Willingham, 118 Ga. App. 821 ( 165 S.E.2d 865). Subsequently, the court correctly charged that "a leading vehicle has no absolute legal position superior to that of one following and that all the circumstances and conditions at the time and place of the accident sued on must be taken into account."
In this case, the plaintiff stopped at an intersection controlled by a traffic light and was struck from the rear by the defendant. In view of the factual situation in this case and considering the charge as a whole, we cannot say that the error complained of is "blatantly apparent and prejudicial" ( Hollywood Baptist Church v. State Hwy. Dept., 114 Ga. App. 98, 99 ( 150 S.E.2d 271) or that a "gross miscarriage of justice" resulted from it ( Nathan v. Duncan, 113 Ga. App. 630, 638 ( 149 S.E.2d 383)) so as to bring it within the exception stated in Sec. 17 (c) of the Appellate Practice Act ( Code Ann. § 70-207 (c)).
4. The fifth enumeration and the second special ground of the amended motion, as supported by the objections to the court's instructions as given before the jury returned its verdict raise the issue of whether under the evidence it was proper to submit to the jury the issue of permanent injuries. Although the evidence is meager, this was properly a matter for jury determination. This enumeration is without merit.
5. The evidence being sufficient to authorize the verdict and no reversible error appearing, the judgment is affirmed.
Judgment affirmed. Felton, C. J., Bell, P. J., Hall, Deen and Whitman, JJ., concur. Eberhardt, Pannell and Quillian, JJ., concur specially.
I concur in the judgment of affirmance but disagree with the method used in reaching that result. The court properly passed upon the general grounds of the motion for new trial, but should have affirmed all the other enumerations of error because the judgment overruling the motion for new trial, unexcepted to as to these special grounds, is the law of the case. The only enumeration of error pertaining to the overruling of the motion for new trial is as follows: "1. The court erred in not sustaining the motion for a new trial, as amended, of plaintiffs-in-error in that the verdict and judgment rendered in this cause in favor of defendant-in-error is contrary to the evidence and is without evidence to support it; in that the said verdict and judgment is decidedly and strongly against the weight of the evidence; and in that the said verdict and judgment is contrary to law and to the principles of justice." The second enumeration contends: "The court erred in admitting into evidence" certain oral testimony. The third enumeration of error is that "[t]he court erred in giving in charge to the jury defendant-in-error's request to charge number 2, over objections of the plaintiff-in-error," and sets forth the request to charge. The fourth enumeration of error complains that "[t]he court erred in giving in charge to the jury, over the objection of plaintiffs-in-error request to charge number 2, hereinabove set forth," setting out additional reasons for such error. Enumeration of error number 5 complained that "[t]he court erred in giving in charge to the jury, over objection of plaintiffs-in-error, defendant-in-error's request to charge number 3" in certain particulars set forth. There was no enumeration of error generally as to the overruling of the motion for new trial. The only reference to the overruling of the motion for new trial is contained in enumeration of error number 1 and that enumeration, by the express language of the appellant, is limited to the general grounds only.
I disagree with the judgment affirming on the special grounds of the motion for new trial for the same reasons given for my dissent in Dawson v. Garner, 119 Ga. App. 469. No other questions should be passed upon, as the other questions are controlled by the law of the case.
I am authorized to state that Judges Eberhardt and Quillian concur in this special concurrence.