George v. D'ANGELO , 171 Ga. App. 433 ( 1984 )

Pope, Judge,

concurring specially.

I concur in the judgment reached in this case. However, I do so for different reasons than those espoused in Divisions 2 and 3 of the majority opinion; I concur fully in Divisions 1 and 4.

Defendant’s second enumeration (Division 2) assigns error to the trial court’s refusal to admit into evidence the sales contract between the plaintiff and the person who sold her the house in question, that person not being a party to this action. We agree with the majority that “[n]o matter how competent evidence might be, a new trial will not be granted merely because evidence has been excluded. It must appear that the excluded testimony was material and the substance of what the material evidence is must be called to the attention of the trial court at the time of its exclusion. [Cits.]” Cooper v. Mercantile Nat. Bank, 137 Ga. App. 605, 611 (224 SE2d 442) (1976). Accord Grant v. Bell, 150 Ga. App. 141 (2) (257 SE2d 12), revd. on other grounds, Bell v. Grant, 244 Ga. 665 (261 SE2d 616) (1979); Carter v. Tatum, 134 Ga. App. 345 (4) (212 SE2d 439) (1975). Although the contract itself is not a part of the record in this case, the transcript discloses that defendant succeeded, at least to some extent, in calling to the attention of the trial court the substance of what he contended was material in the sales contract. Nevertheless, I believe the trial court properly excluded said contract under the circumstances in this case because it was not material to the issues at trial. See Inman & Co. v. Crawford & Maxwell, 116 Ga. 63 (1) (42 SE 473) (1902); Brown Shoe Co. v. Moore, 53 Ga. App. 159 (3) (184 SE 923) (1936).

As to defendant’s third enumeration of error (Division 3), the record discloses that he objected to the trial court’s “giving a charge on the plaintiff’s request number three . . . .” Plaintiff’s request number three was a charge dealing with proximate cause, and although the objection made most certainly could have been more elaborative, the record discloses some indication that the trial court understood the nature of the objection so that he was able to rule intelligently on the specific point raised thereby. See Christiansen v. Robertson, 237 Ga. 711 (229 SE2d 472) (1976). See generally Harper v. Ga. S. & Fla. R. Co., 140 Ga. App. 802 (7) (232 SE2d 118) (1976). Nevertheless, the issue raised by this enumeration of error — that the pleadings and evidence did not support the charge — is without foundation in the record.

For the foregoing reasons, I concur in the affirmance of the judgment of the trial court.