Tallent v. McKelvey

Hall, Judge.

1. The evidence did not demand a verdict for the defendant.

2. Ground 6 complains of the charge of the court on the subject of accident. We think this charge was error. It gave the defendant the benefit of a defense not pleaded or sustained by the evidence. Since accident was not involved, “the charge on that subject was probably harmful to the plaintiff in view of the very small verdict for the plaintiff.” Riggs v. Watson, 77 Ga. App. 62, 67 (47 SE2d 900).

3. On' the general grounds of a motion for new trial a verdict in an amount not supported by the evidence must be set aside. Bishop & Parsons v. Mayor &c. of Macon, 7 Ga. 200, 204 (50 AD 400); Hood & Robinson v. Ware, 34 Ga. 328; Roddenberry Hdw. Co. v. Merritt, 17 Ga. App. 425 (87 SE 681); Travers v. Macon Ry. &c. Co., 19 Ga. App. 15 (90 SE 732); Hill v. Cloud, 48 Ga. App. 506, 507 (173 SE 190); Davis v. Dula, 91 Ga. App. 448 (85 SE2d 825); accord, Oliver v. Coleman, 36 Ga. 552, 555; Buchanan v. Hieber, 78 Ga. App. 434, 439 (50 SE2d 815); State Highway Bd. v. Warthen, 54 Ga. App. 759, 763 (189 SE 76).

The verdict for the plaintiff in this case shows that the jury found against the defendant on the question of liability. Plaintiff’s undisputed evidence shows that he sustained special damages of approximately $5,000. Since the evidence “authorized the finding of the jury establishing the liability of the defendant, and' the undisputed evidence showed actual damages to the plaintiff resulting from the injuries sustained,” a verdict in favor of the plaintiff for less than the actual damages proved “was grossly inadequate and contrary to law and the evidence, and the refusal to grant the plaintiff a new trial was error.” McLendon v. Floyd, 59 Ga. App. 506 (1 SE2d 466); accord, King v. Citizens Bank of DeKalb, 90 Ga. App. 638 (83 SE2d 821); Hamer v. White, 110 Ga. 300 (34 SE 1001); Hankin Music Co. v. Deaton, 62 Ga. App. 599 (9 SE2d 121).

It is contended that the amount of the verdict is explained by the application of the theory of comparative negligence. It is true that the trial court charged the law on comparative negli*663gence. However, under both the pleadings and the evidence in this case the intersection where the collision occurred was controlled by a traffic light and there was positive evidence as to the manner in which the light was operating. If the intersection had not been so controlled the theory of comparative negligence would probably have been involved. The charge was clearly erroneous because the evidence does not authorize a finding of contributory negligence on the part of the plaintiff if the defendant’s negligence, as found by the jury, was the proximate cause of the injuries. Anglin v. City of Columbus, 128 Ga. 469, 472 (57 SE 780).

The verdict in the amount of $730 was contrary to law and the evidence. The fact that the judge erroneously charged the jury on the law of comparative negligence and the plaintiff did not except to this charge, does not affect the illegality of a verdict which has been excepted to as being contrary to law and the evidence. Lee v. Hill, 28 Ga. App. 312 (111 SE 211). When the losing party fails to except to an erroneous charge, it becomes the law of the case that the judgment cannot be reversed on the ground of the erroneous charge. But a charge giving legal significance to facts in evidence, which in law have no significance, does not become the law of the case, when a motion for new trial is made containing the ground that the verdict is’ contrary to the law and the evidence. Lee v. Hill, supra. A fortiori, the failure to except to an erroneous charge upon a subject upon which there is no evidence cannot create evidence or make it the law of the case that there is such evidence, against the grounds that the verdict is grossly inadequate and is contrary to law and the evidence. Furthermore, it is inconceivable that a judgment cannot be reversed where there are two patent errors which are excepted to, because there is also a third error upon which there is no assignment.

The court erred in denying the motion for a new trial on the general grounds. It is therefore unnecessary to pass on Grounds 4 and 5.

Judgment of reversal adhered to on rehearing.

Carlisle, P. J., Bell, Jordan, and Eberhardt, JJ., concur. Felton, C. J., Nichols, P. J., Frankum and Russell, JJ., dissent.