1, 2. The motions to dismiss the appeal are denied, one on the ground that appeal was not the method by which to bring the case to this court, and the other, that exceptions to the court's charges and failure to charge did not show foundations for such exceptions provided in the Appellate Practice Act of 1965.
3. The erroneous misstatement of a contention of a party is error requiring the grant of a new trial where the error is not corrected and attention called to the erroneous charge.
4. The second exception to the charge contains matter which will not likely be present in the charge on another trial so the exception will not he passed on.
6. The failure to charge the measure of damages to personal property was error requiring the grant of a new trial in this case.
7. The court did not err in refusing to admit in evidence the report of the collision made by a state trooper.
Ryder Truck Rental, Inc., on April 5, 1963, instituted an action against Mary Craven Gianotos to recover damages to its 1961 Ford Diesel tractor and Fruehauf trailer, which damages were alleged to have been proximately caused by the negligence of the above named defendant in the operation of her 1961 Buick LeSabre automobile on November 29, 1962. Mary Craven Gianotos instituted an action against Diamond Brothers Company of Georgia, Inc., Dimension Lumber Company, Inc., and Ryder Truck Rental, Inc., on May 6, 1963, to recover damages to herself, consisting of personal injuries and damages to her automobile. On May 7, 1963, Miss Gianotos filed her answer in the action first mentioned above and cross action for damages alleged to have been caused by the negligence of the three defendants named in her action filed on May 6, 1963. The negligence charged by Miss Gianotos in her action and in her answer and cross action are about the same, and the negligence charged against her in the action filed by Ryder Truck Rental, Inc., and in the answer of the three corporate defendants to the action filed by Miss Gianotos is about the same. The cases were consolidated and tried, resulting in a verdict and judgment against all three corporate defendants in Miss Gianotos' action. Their notion for a new trial was overruled on September 7, 1965, and they appeal from that judgment.
1. The appeal is not subject to dismissal on the ground that it should have been brought here by writ of error and not by appeal. Bills of exceptions were abolished as such as of August 1, 1965, and the appeal otherwise than by a bill of exceptions is appropriate. The motion to dismiss the appeal on this ground is denied.
2. The motion to dismiss the appeal on the ground that the only exceptions in the appeal are based on exceptions to the court's charges and failure to charge and that no proper foundation was laid for such exceptions under the Appellate Practice Act of 1965 is without merit because this case was tried before August 1, 1965, when said Act went into effect. At the time this case was tried there was no provision of law requiring a foundation to be laid for the exception to a charge or refusal to charge. The motion to dismiss the appeal on the second ground is denied. The motion is also denied for the reason that there is one enumerated error which is not based on a charge or a failure to charge.
4. The second exception to the charge is that the court charged the jury that Miss Gianotos' injuries are due to the negligence of the agent of the three corporate parties rather than stating to them that such was the contention of Miss Gianotos. This court cannot be sure, as the record appears, whether this exception is good or not. We are sure that the judge intended to state the matter as a contention. He may have been reading from a pleading of Miss Gianotos. This is indicated. As the case must be tried again we leave this matter to the trial judge as we are confident that the confusion will not recur.
5. The third and fourth exceptions are that the court erred in giving the following excerpts: (1) "Now if either party by the exercise of ordinary care could have avoided the consequences to himself caused by the negligence of the other, if such there was, when such negligence became apparent to the party or by the exercise of ordinary care on their part they could have avoided or become aware of it, then that party could not recover"; (2) "If either party by the exercise of ordinary care could have avoided the consequences to himself or herself caused by the negligence of the other when that negligence became apparent to him or to either of them by the exercise of ordinary care on either's part, he could not have become aware of it, then that party could not . . . would not be entitled to recover."
(b) The second excerpt assigned as error is erroneous because the sentence "he could not have become aware of it" is indirect conflict with the true avoidance rule and in conflict with the principle stated immediately preceding the quotation next above.
The judge correctly stated the avoidance rule in other parts of the charge but he did not call attention to the erroneous charge and correct it. The Supreme Court has been very strict in the enforcement of this rule that an erroneous charge must be eradicated by correcting it and calling the jury's attention to that fact. This court made an attempt to make a more liberal application of the rule but was reversed by the Supreme Court. See Executive Committee of Baptist Convention v. Ferguson, 213 Ga. 441 (99 SE2d 150)
Brewton, 150 Ga. 37 (2) (102 SE 439); Brown v. Wells, 161 Ga. 413 (2) (131 SE 159); City of Barnesville v. Parham, 44 Ga. App. 151 (5) (160 SE 879); Southeastern Greyhound Lines v. Hancock, 71 Ga. App. 471 (5) (31 SE2d 59); Gainesville Transfer Co. v. Chandler, 47 Ga. App. 409 (170 SE 558); Furney v. Tower, 34 Ga. App. 739 (5) (131 SE 177); Bledsoe v. Potts, 39 Ga. App. 689 (148 SE 291).
7. There was no error in the court's refusing to admit in evidence the official report of the investigation of the occurrence by Trooper H. G. Yoemans. It does not appear that the facts reported on the document were admissible in evidence as having probative value to prove an affirmative fact or to impeach the testimony of the witness Yoemans.
The court erred in overruling the motion for a new trial filed by the three corporate parties.
Judgment reversed. Frankum and Pannell, JJ., concur.