1. The general demurrer to the petition and the motions for a new trial on the general grounds and for a judgment notwithstanding the verdict were properly overruled under decisions in companion cases.
2. The special demurrer to paragraph 19 of the petition was imperfect and properly overruled.
3. The charge by the court of Rule 10 of the Georgia Public Service Commission was authorized under the evidence.
4. Under the facts of this case it was error for the court to charge the jury that in determining the amount of the verdict they could consider the effect of the period of inflation on the value of money.
5. In view of the court's charge on Rule 10 of the Public Service Commission it was not harmful to plaintiff in error for the court to charge that to be guilty of driving under the influence of intoxicating liquors the operator of a motor vehicle must be able to drive less safely than when not under such influence.
6. The charge on what brakes the law requires for motor vehicles was authorized by the evidence.
7. In this civil action it was error for the court to charge Code 26-404.
8. (a) In order for a party to be authorized to introduce in evidence the testimony of a witness in a former trial, the former trial must have been between substantially the same parties. In this case the parties were substantially the same under rulings by this court and the Supreme Court. (b) For such testimony to be admissible the requirements of Code 38-1803 must be complied with.
William Pierce Carr, as plaintiff, brought suit against John J. Woodside Storage Company, Inc., and Transport Insurance Company in the Superior Court of McDuffie County for the recovery of damages resulting from the death of his minor son which resulted from a collision on June 14, 1959, between an automobile being driven by the plaintiff's son and a truck belonging to the defendant, Woodside. The petition sought the recovery by the plaintiff for the loss of services of his son and for the funeral expenses incurred by plaintiff. The defendants filed a demurrer to the petition and renewed it to the petition as amended. Thereafter, the demurrer as renewed was overruled. The case was tried on Mardi 15 and 16, 1961, and a verdict was rendered in favor of the plaintiff in the amount of $5,000. The plaintiffs in error filed a motion for a judgment notwithstanding the verdict and a motion for new trial on the general grounds. The case is before this court on exceptions to the overruling of the renewed demurrer of the defendants to the petition as amended and to the judgments of the trial court overruling the motion for a new trial as amended and the motion for judgment notwithstanding the verdict. This is a companion case to the case of Mrs. William Pierce Carr, Carr v. John J. Woodside Storage Co., 103 Ga. App. 858 (120 SE2d 907)
, reversed by the Supreme Court in 217 Ga. 438 (123 SE2d 261)
, and of John J. Woodside Storage Co. v. Reese, 105 Ga. App. 602 (125 SE2d 556)
. In the suit brought by Mrs. Carr, she sought recovery for the wrongful death of her son. Reese was a passenger in the Ford and his suit was brought for the personal injuries sustained by him. Although the pleadings in these three cases are not identical, they are substantially the same in all material issues and the evidence in the three cases was also very similar as to most issues.
2. Paragraph 19 of the plaintiff's petition as amended alleged: "As William Pierce Carr, Jr. was approaching the intersection of Georgia Highway No. 12 he was running at a speed of approximately 15 to 25 miles per hour and the brakes would not and did not take effect and reduce speed or stop said automobile, although William Pierce Carr, Jr. pumped same several times, and plaintiff alleges that said brakes had held perfectly at all times prior to that moment and said William Pierce Carr, Jr. had no notice or knowledge of the defective condition of said brakes." The demurrer of the defendants to this paragraph is as follows: "Defendants specially demur to paragraph nineteen (19) of plaintiff's petition as amended for the reason that it is not alleged therein or elsewhere in said petition the distance between the Ford automobile being driven by William Pierce Carr, Jr. and the intersection when he allegedly applied the brakes, the allegation that he pumped the brakes as he approached the intersection being too vague and indefinite." The court did not err in overruling this special demurrer to paragraph 19 of the petition for the reasons that the demurrer itself is not perfect and that there is no allegation in paragraph 19 of the amended petition that William Pierce Carr, Jr. "applied the brakes." On the contrary, the allegation was that he endeavored to apply the brakes by pumping them several times and that they did not take effect.
4. Ground 5 of the amended motion complains of the following charge: "If you find in favor of the plaintiff, I charge you in determining the amount of your verdict, you may consider the period of inflation now in existence and as it affects the value of money. Under the facts of this case the charge was error. The action is for $621 funeral expenses and the defendant in error's loss of his son'S services from June 14, 1959, until he reached the age of 21 years. The value of the dollar at the time of the trial as compared to its value in the past was irrelevant on the question of the amount of plaintiff's damages. The dollars involved in the funeral expenses were inflated dollars and no judgment for doubly inflated dollars or more inflated dollars could have been legally rendered. The same principle applies to the value of the son's services. The dollars he earned and could earn in the future were inflated dollars and the jury would not have been authorized to find more dollars than the evidence authorized regardless of whether they were inflated or deflated.
5. Ground 6 of the amended motion complains of the charge to the effect that to be guilty of drunken driving on the highways of the State one would have to be so intoxicated as not to be able to drive as safely as he could if not under the influence of intoxicants at all. This ground is without merit. The charge states a correct principle of law and it was harmless and probably beneficial to the plaintiff in error because the court charged that a violation of Rule 10 of the Public Service Commission was negligence per se and under that rule the "less safe" driving rule does not apply. Carr v. John J. Woodside Storage Co., 217 Ga. 438
6. Ground 7 of the amended motion complains of the charge as to the requirement that motor vehicles must be equipped with brakes adequate to stop and hold the vehicles, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. This charge was not error or harmful to the movant because even though there was no evidence whether defendant in error's son had serviceable emergency brakes the inference was authorized that he either did not have good emergency brakes or that if he had them he was negligent in not applying them.
7. Ground 8 of the amended motion complains that in charging on the theory of accident the court erred in quoting Code 26-404 as follows: "A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect." This charge is not appropriate in a civil case such as this one because a jury might conclude that the defendant in error might recover if his son was not guilty of any crime or misdemeanor.
9. Ground 10 of the amended motion complains of the refusal of the court to declare a mistrial because of argument made to the jury by the attorney for defendant in error. The argument was: "Judge Norman wouldn't let you pass on it; he would tell you to sign a verdict. Whenever the Judge tells you to go out and decide, you can know that the evidence doesn't demand it on their side, etc." The fact that a judge submits a case to a jury does not necessarily mean that he is of the opinion that a verdict is not demanded for one side or the other. See Washington v. State, 80 Ga. App. 415 (56 SE2d 119). The argument was improper and as the argument will not be repeated on another trial it is not necessary to decide whether a mistrial should have been granted.
10. Grounds 11 and 12 complain of the failure to declare a mistrial because of certain alleged improper arguments to the jury by counsel for defendant in error. These arguments were not based on evidence or legitimate inferences from evidence and were under the law improper. Whether alone they would have been harmful enough to require a new trial we do not decide. We assume that the ground for the complaints here made will not recur on another trial.
The court erred in overruling the amended motion for a new trial. The court did not err in overruling the demurrers nor in overruling the motion for a judgment notwithstanding the verdict.
ON MOTION FOR REHEARING.
What we have held in Division 8(b) does not conflict with and is not inconsistent with what was held in Travelers Ins. Co. v. Miller, 104 Ga. App. 554 (2)
, 563-565 (122 SE2d 268
). It is to be kept in mind that the requirements of Code 38-1803 are for the benefit of the witness. In Travelers Ins. Co. the witness Ghandi had not, so far as appears, given any previous testimony, nor does it appear that those who may have taken his written statement which was, by agreement, admitted in evidence, had any knowledge or information at the time of taking it of any prior inconsistent statement that he may have made to anybody. That did not appear until a witness so testified at a later time. Consequently, the confrontation of Ghandi with the prior inconsistent statement was not possible. Here the reverse is true. When the deposition was taken Yelverton had already testified in the prior trial and that was known to him and to counsel who sought to impeach him by introducing the former testimony here. Any prior inconsistent statements in the testimony were available when the deposition was taken, or could have been, and these should have been called to his attention so that he might explain, if he could, the inconsistency. There was opportunity for cross examination, both on the former trial and on the taking of the deposition. If Yelverton had testified in person instead of by deposition at the trial here could it be doubted that the requirements of Code 38-1803 would apply? Obviously not. And the fact that he testified by deposition could not change the requirement nor diminish the reason for it. Accordingly, the rule announced by Wigmore and referred to in Travelers Ins. Co., supra, has no application here.
Rehearing denied. Eberhardt and Russell, JJ., concur.