dissenting.
I cannot concur with the majority’s reversal of the judgment of the trial court on the basis set forth in Division 5 of the opinion. There is some doubt that the majority is correct in its conclusion that the requested charge was a correct statement of the defense of legal accident. See Cohran v. Douglasville Concrete Prods., 153 Ga. App. 8, 10-11 (1) (264 SE2d 507) (1980); Bush v. Skelton, 91 Ga. App. 83 (84 SE2d 835) (1954). However, even assuming that the requested charge was a correct statement of that principle, I cannot agree with the majority’s conclusion that the trial court committed reversible error in failing to give that requested charge.
As recognized by the majority, this Court has previously held that where the trial court otherwise gives a full and fair charge on the general principles of negligence law, the failure to give a request to charge on the defense of legal accident does not authorize reversal of the judgment entered on the verdict. Benson v. Hunter, 184 Ga. App. 40 (360 SE2d 612) (1987); Glenn McClendon &c. v. Williams, 183 Ga. App. 508 (359 SE2d 351) (1987). Notwithstanding the majority’s expansive discussion of the issue, the simple truth of the matter is that Benson v. Hunter, supra, is a whole court case and is controlling here unless overruled. OCGA § 15-3-1 (d). As in Benson, “ ‘[t]he record in this case shows that the trial court gave a full and fair charge on the general principles of negligence law, instructing the jury that [appellant] could not be found liable in the absence of [appellant’s employees’] negligence. In view of the charge as given by the trial court, the failure to give the additional requested charge on the merely “elaborative” defense of legal accident was, at most, harmless error.’ [Cit.]” *658Benson v. Hunter, supra. Either Benson is correct and the failure of a trial court to give a requested charge on the merely “elaborative” defense of legal accident can be deemed to be harmless error or the majority in the instant case is correct and such a failure cannot be so deemed. Under the majority’s rationale, this case must now be retried because the trial court failed to instruct the jury that there could be no recovery if the injury occurred without being caused by the negligence of either appellees or appellant. However, the trial court’s instructions already contain a charge to the effect that appellees cannot recover in the absence of negligence on the part of appellant. In my opinion, it defies logic to suggest that the failure to charge this principle twice warrants a retrial of this case. As we said in another whole court case, “it has long been recognized that [legal accident] is not a separate defense but is merely ‘elaborative’ of general principles of negligence law. [Cit.]” Chadwick v. Miller, 169 Ga. App. 338, 342 (1) (312 SE2d 835) (1983). I believe that Benson was correctly decided and that the judgment of the trial court in the instant case should be affirmed. Hopefully, the instant case will provide the Supreme Court with a vehicle for deciding an issue which has now resulted in two diametrically opposing whole court decisions by this court within a three-year period. The question clearly needs final resolution by the Supreme Court since it is apparent that no litigant in this state can have any assurance what this court’s answer will be in any given case. For the above reasons, I must respectfully dissent.
Decided July 31, 1990 Rehearing denied August 14, 1990 — Cert, applied for. Charles J. Vrono, for appellant. Awtrey & Parker, Toby B. Prodgers, for appellees.I am authorized to state that Presiding Judge Deen and Judge Pope join in this dissent.