Essig v. Cheves , 75 Ga. App. 870 ( 1947 )

1. Where the plaintiff in error makes no contention that the verdict and judgment of the court should be set aside because of lack of evidence to support it, the general grounds of the motion for a new trial will be treated as abandoned. Code, § 6-1308; Gullatt v. State, 14 Ga. App. 54 (10) (80 S.E. 340); Green v. Lingo, 180 Ga. 853 (181 S.E. 148).

2. When evidence is offered and its admissibility challenged, counsel may state the reason why such evidence should be allowed, and when in the course of such a colloquy between counsel and the court, counsel acting in good faith and not in a manner calculated to prejudice the jury, no ground for a mistrial is afforded. Walker v. State, 124 Ga. 98 (52 S.E. 319). The matter is addressed largely to the discretion of the trial judge, in whose presence the argument was made, and who sees and is in position to judge of the demeanor of counsel. Atlantic Coast Line R. Co. v. Jones, 132 Ga. 189, 202 (63 S.E. 834).

3. An assignment of error upon the admission of evidence complaining that the same creates a false and prejudicial issue, in order to be complete, must set out how the evidence was prejudicial and what false issue was created. See Code, § 6-1607; Collins v. Carr, 111 Ga. 867 (36 S.E. 959); Binion v. Georgia So. Ry. Co., 118 Ga. 285 (45 S.E. 276).

4. Testimony of the manager of a business that on a certain occasion one of the employees thereof was on the business of the principal, is not a conclusion of the witness, but a statement of fact, the accuracy of which may be tested by cross-examination and other existing methods. Scott v. Kelly Springfield Tire Co., 33 Ga. App. 298 (6) (125 S.E. 773); Sankey v. Columbus Iron Works, 44 Ga. 228 (3); Shaw v. Jones, 133 Ga. 446 (3) (66 S.E. 240).

5. An operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting highway, but shall give the right of way to an operator of a vehicle approaching from the right on an intersecting highway. Code, § 68-303 (g). This rule, that at an intersection the driver on the right shall have the right of way is not limited to two vehicles coming to an intersection simultaneously, or practically so, but is applicable to any situation where the distances between the two vehicles, their relative speeds, or any other circumstances show that the driver on the left should reasonably apprehend a collision would occur unless he yielded the right of way. Smeltzer v. Atlantic Coach Co., 49 Ga. App. 755 (176 S.E. 846).

6. In order to determine whether a portion of the charge of the court is error, the charge must be construed as a whole. Brooks v. State, 19 Ga. App. 45 (90 S.E. 971); Howard v. Macon Ry. Light Co., 17 Ga. App. 55 (86 S.E. 256).

DECIDED SEPTEMBER 19, 1947. REHEARING DENIED OCTOBER 29, 1947. Mrs. Mary Cheves sued Mrs. Pearl Essig, trading in the name of Jack Mann Battery Company, and Doyle Mimbs, in the City Court of Macon. In this action Mrs. Cheves sought to recover damages for $5000 because of personal injuries and property damage resulting to her from a collision between the car in which she was riding and a car, the property of Mrs. Pearl Essig, which at the time of the collision was being operated by Mrs. Essig's employee, Doyle Mimbs. The jury trying the case returned a verdict for Mrs. Cheves in the sum of $5000, the full amount for which she prayed.

The issues made by the pleadings were clear cut and simple. The plaintiff's petition described a collision between her car and the Essig car at a street intersection in the City of Macon. The plaintiff's car was being driven by her minor son, and as above stated, the Essig car was being driven by Doyle Mimbs.

The original acts of negligence charged against Mimbs were two: first, It was alleged that he approached the intersection at a rate of speed in excess of 50 miles an hour, and that this speed was a violation of the ordinance of the City of Macon; and second, It was alleged that Mimbs failed to give any warning to the plaintiff that he was approaching the intersection, notwithstanding the fact he saw the plaintiff's car.

At the trial of the case the plaintiff amended her petition, both as to the acts of negligence and as to the special damage which she sustained. The allegations of negligence in the amendment made no substantial change in the case. The amendment contains a statement that Doyle Mimbs failed to slow down the Essig car.

In her answer, Mrs. Essig denied the material allegations of the plaintiff's petition, and also alleged that any injuries which she might have suffered were the result of the negligence of the plaintiff and her son, who failed to exercise ordinary care and diligence at the time of the collision. The answer also contained a statement that if Mrs. Essig was negligent, which she denied, the plaintiff could have avoided the consequences of such negligence by the exercise of ordinary care and diligence.

Mrs. Cheves' petition alleged that Doyle Mimbs, at the time of the accident, was the agent of the defendant, and was acting within the scope of his duties and was on the business of the defendant at the time and place of the accident. The answer of Mrs. Essig denied this allegation in the petition, thereby raising an issue of agency.

At the trial of said cause Mrs. Essig amended her separate answer and alleged that the plaintiff's car at the time of the accident was being operated in excess of 20 miles an hour, in violation of an ordinance of the City of Macon, and further that at the time and place of the accident the operator of her car, Doyle Mimbs, had the right-of-way by reason of the fact that he was approaching said intersection from the right which, under the ordinance of the City of Macon, gave him the right-of-way at the intersection where the collision occurred.

The defendant, Doyle Mimbs, through the law firm of Hall Bloch, filed a separate demurrer and answer in said case. They were practically identical in form and substance with the separate demurrer and answer of the defendant, Mrs. Essig.

Three major issues were involved on the trial of the cause: first, negligence — each of the parties contended that the collision resulted from the negligence of the other party. In addition, the defendant in the trial court introduced into the case the doctrines of comparative and contributory negligence by her answer; second — the second issue involved the agency of Doyle Mimbs at the time and place of the wreck; third — the third issue was the nature and extent of Mrs. Cheves' injuries and property damage.

There was evidence in the record on the three major issues which supports the verdict of the jury. On the first two issues the jury could have found in favor of the plaintiff in error and such finding would have been supported by the evidence. On the third issue of Mrs. Cheves' injuries and property losses there was evidence to support the verdict. 1. It is not necessary to set forth any of the evidence introduced on the trial of the case on the issues raised by the pleadings inasmuch as the plaintiff in error concedes that the verdict and judgment of the trial court should not be set aside because of the lack of evidence to support it. This concession is an abandonment of the general grounds of the motion for a new trial by the plaintiff in error. Gullatt v. State, 14 Ga. App. 54 (10) (80 S.E. 340); Green v. Lingo, 180 Ga. 853 (181 S.E. 148).

2. In ground 1 of the amended motion complaint is made that the court erred in refusing to declare a mistrial on account of statements made by counsel for the defendant in error and set out in that ground of the amended motion. The colloquy between the court and counsel, which they contended was prejudicial error requiring the grant of a mistrial, is the following: "Harold Graham was called as a witness by counsel for the plaintiff in error. He testified when he was giving the deposition on September 26, 1946, that an insurance man and investigator came to see him and asked him questions with reference to whether or not he was out in Vineville on the date the accident occurred. He further testified that he told the insurance man he was not out there. When this deposition was taken counsel for the plaintiff in error called attention to the fact, rights were being reserved to object to this testimony when it was offered on the trial of the case. When this testimony was offered at the trial of the case the following occurred: Q. Did an investigator, an insurance man, come to see you and ask you questions with reference to whether or not you were out in Vineville on this date that I referred to? A. Yes, sir. Gen. Russell: Your Honor, please, here is some testimony about a conversation between a witness and an insurance adjuster, which is irrelevant, and immaterial and it is hearsay. The court: You can show that fact. It is the conversation that is objected to. Mr. Maynard: What I am trying to do is prove that he did come to see him. The court: I am leaving that in. Mr. Maynard: The statement is to the effect that Mimbs went to Vineville to see Harold and Harold says this adjuster came to see him and he told him he was not out there. He is obliged to know that part of Mimbs' statement could not be true. I submit it is admissible. Gen. Russell: We know all parts of that statement are not true. Mr. Jones: It shows you knew it was not true when you took it down. Mr. Maynard: He says they approached him and he told them he wasn't there. Then after they get that from him, to write in there that he did go into Vineville to see him, and he told him he wasn't out there. Gen. Russell: There is not a scintilla of evidence to support any such statement. Mimbs' statement was made on the 17th of August, 1944, and he told us he had been over to see Graham; then we went to see Graham to see if he had. The reason we went to see Graham was because Mimbs had told us he was looking for Graham. It is perfect hearsay. Mr. Maynard: We submit it is admissible to show that this investigator who took this statement from Mimbs knew — had talked with Harold Graham and Graham had told him he wasn't in Vineville, and he was put on notice then that Harold Graham wasn't there, and yet he had it in his statement to the effect that Mimbs said he was there, and I submit that it is admissible to go to this jury to explain motive in connection with it. The court: I thought I had ruled on it. (Jury retired.) Gen. Russell: I desire to move the court to declare a mistrial on the ground that the remarks of counsel are highly prejudicial for two reasons: First, he refers to an insurance adjuster who went to see two men, one named Mimbs and one named Graham, and the fact that there was an insurance adjuster working on the case has only been recited to the jury for prejudicial reasons. The second ground of the motion for mistrial is that counsel has disputed the ruling of the court. The question and answer was hearsay, and hence inadmissible. Counsel, in the presence of the jury, has drawn a conclusion which is unfounded in fact, in that counsel stated to him that the insurance adjuster went to see Graham and discovered from Graham that he was not out in Vineville, and thereafter, notwithstanding the knowledge which he had, that he inserted in the statement which Mimbs made that Graham was out there and that Mimbs was not there looking for Graham. There is no testimony in this record to indicate that he talked to Graham before he talked to Mimbs. The statement and argument on evidence which is itself illegal and hearsay is highly prejudicial, and in my opinion warrants a mistrial in this case. Mr. Maynard: I was laying my foundation to show why it is admissible. I had not had a chance to put my reason down there as to why it is admissible. The court: You were talking to the jury, were you not? Mr. Maynard: No, sir, I was not even looking at them. I was looking toward the stenographer. I was not talking to the jury; I never had them in my mind. I was fixing the foundation, making my objections so I could except to your ruling. I think I am entitled to make a statement. The court: I think those statements ought to be made before the court rules. Mr. Maynard: Sometimes the court rules before you have time to make them, as you did in this case. The court: I did not give you time to state your position? Mr. Maynard: When you said, ``I rule it out,' I had not had time to complete it. I just stated the grounds why I thought it was admissible, laying the foundation so I could except to it. If I don't lay the foundation I can't except to it. The court: In view of Judge Maynard's statement that I did not give him opportunity to state his position, I am going to overrule the objection. I am ruling with Gen. Russell as to the conversation out there. I let in the fact that he went out."

The plaintiff in error put the insurance adjuster on the stand and brought out from the adjuster on direct examination that he was an agent of the Travelers Insurance Company, and that the insurance contract covered the defendant in this case. Testimony of the insurance adjuster on this point is as follows: "My name is Robert Engelhart and my address is 10 Pryor Street, Atlanta. I am employed by the Travelers Insurance Company as Claim Investigator. As such Claim Investigator, I have investigated the accident in which Mrs. Cheves' car was involved with a car of Mrs. Essig. In connection with that investigation I saw one Doyle Mimbs. . . He is the man who was driving the Essig car at the time of the collision. . . I was getting this statement for Travelers Insurance Company. The Travelers Insurance Company insures Jack Mann Battery Company and an accident had been reported to us and I took this statement for the purpose of investigating the accident to determine liability."

The above statements of counsel in a colloquy between the court and counsel on ruling upon the admissibility of evidence are not of such a prejudicial nature as to require the grant of a mistrial and it was not error to overrule the motion for a mistrial on account of such colloquy. When evidence is offered and its admissibility challenged, counsel may state the reason why such evidence should be allowed, and when in the course of such a colloquy between counsel and the court, counsel acting in good faith and not in a manner calculated to prejudice the jury, no ground for a mistrial is afforded. Walker v. State, 124 Ga. 98. The matter is addressed largely to the discretion of the trial judge, in whose presence the argument was made, and who sees and is in position to judge of the demeanor of counsel. Atlantic Coast Line R. Co. v. Jones, 132 Ga. 202 (supra).

3. Ground 2 complains that the court erred in permitting certain evidence of the witness, Doyle Mimbs, to go before the jury as follows: "Q. Who is Mr. Charley Bloch? A. I don't know, sir. Q. You don't know him? A. No, sir. Q. Who are Hall Bloch, have you ever heard of them? A. No, sir. Q. You haven't hired any lawyers in connection with this matter, have you? A. No, sir. Mr. Harris just said he would pay the lawyer bill, that is all. Q. That is Mr. John Harris? A. Yes, sir."

The contention is that the admission of this evidence was error because it created a false and prejudicial issue. The ground does not set out how this evidence was prejudicial to the cause of plaintiff in error, or what false issue was created. It appears from the evidence that an answer in this case was filed by the law firm of Hall Bloch.

An assignment of error upon the admission of evidence complaining that the same creates a false and prejudicial issue, in order to be complete, must set out how the evidence was prejudicial and what false issue was created. See Code, § 6-1607;Collins v. Carr, 111 Ga. 867 (supra); Binion v. GeorgiaSo. Ry. Co., 118 Ga. 285 (supra).

4. Ground 3 of the amended motion complains that the court erred in permitting the witness DeJarnette to testify that at the time Mimbs was going to the hospital to have his arm treated, that he, Mimbs, was on Jack Mann Battery Company's business. The complaint is that the statement by DeJarnette was a conclusion and for that reason inadmissible.

As to whether Mimbs was on business for Jack Mann Battery Company is a fact and not a conclusion, just like agency. InScott v. Kelly Springfield Tire Co., 33 Ga. App. 298 (6), Judge Bell, speaking for the court said: "Agency is a fact, and the testimony of a witness that a certain person was the defendant's duly authorized representative' was not subject to the objection that it was a statement of mere conclusion. Whether the statement was well founded was a matter for cross-examination, or for determination by other facts in evidence, either from the witness or other testimony. Sankey v. Columbus Iron Works, 44 Ga. 228 (3); Shaw v. Jones, 133 Ga. 446 (3) (66 S.E. 240)."

Under the authority of these cases the admission of the evidence complained of in ground 3 of the amended motion was not error.

5. Error is assigned in ground 4 of the amended motion upon the following portion of the charge of the court, to wit: "Another statute provides: ``An operator of a vehicle shall have the right-of-way over the operator of another vehicle approaching from the right on an intersecting highway.'

"I charge you the rule that at intersections drivers on the right shall have the right-of-way is not limited to two vehicle coming to an intersection simultaneously or practically so, but is applicable to any situation where the distance between the two vehicles, their relative speeds or any other circumstances show that the driver on the left should reasonably apprehend a collision would occur unless he yield the right-of-way.

"I charge you further vehicles have the right-of-way over vehicles approaching from the left in an intersecting street, yet this right is not absolute under all circumstances and conditions, but is relative only and is determinable by the relative positions of the approaching vehicles, their relative speed and other attending circumstances, whatever they were."

The plaintiff in error admits that the court correctly charged the statute and law in the first paragraph of the charge above quoted, but contends that the giving in connection with the first paragraph of the charge the last two paragraphs in a large measure destroyed the force and effect of the statute contained in the first paragraph of the charge above quoted.

We cannot agree with these contentions of the plaintiff in error.

This collision occurred at a street intersection in the City of Macon and the charge contained in paragraphs 2 and 3 of the above-quoted charge were pertinent and applicable to this case, and are correct statements of the law.

Practically the identical charge contained in paragraph 2 was upheld and approved by this court in Smeltzer v. Atlantic Coach Co., 44 Ga. App. 53 (supra), in which this court held: "The ordinance of the City of Atlanta providing that ``at all intersections, all vehicle drivers on the right of other vehicles shall have the right-of-way' is not limited absolutely to instances ``when two vehicles come to intersecting streets simultaneously, or practically at the same time,' but is applicable in any situation where, in consideration of all the circumstances, including the distances of the two vehicles from the intersection and the relative speeds at which they are approaching it, the driver of the vehicle on the left should reasonably apprehend that a collision would occur unless he yields the right-of-way. See, in this connection, Holman v. Ivins, 150 Minn. 285 (184 N.W. 1026, 21 A.L.R. 964, 974); Mappv. Holland, 138 Va. 519 (122 S.E. 430, 37 A.L.R. 478, 493; Thrapp v. Meyers, 114 Neb. 689 (209 N.W. 238, 47 A.L.R. 585, 595); Heidle v. Baldwin, 118 Ohio 375 (161 N.E. 44, 58 A.L.R. 1186, 1197); Garrett v. Byerly, 155 Wash. 351 (284 P. 343, 68 A.L.R. 254); 42 C. J. 982, 707." See also 49 Ga. App. 755 (176 S.E. 846); Laseter v. Clark, 54 Ga. App. 669 (189 S.E. 265).

Likewise, paragraph 3 of the charge above quoted has been approved and held to be correct in cases similar to the case at bar. See Brown v. Sanders, 44 Ga. App. 114 (160 S.E. 542), and citations.

The charge excepted to in this ground of the motion for new trial is not error for any reason assigned.

6. Ground 5 of the amended motion assigns error upon the following charge of the court, to wit: "I charge you that if you believe that at the time of the collision in question Doyle Mimbs was lost and that he was making an effort to locate an address at which to deliver a battery for his employer, the plaintiff would be entitled to recover from the employer and the defendant, Mimbs, provided his negligence was the proximate cause of the plaintiff's injuries and damages to her car; that is, provided she could not have avoided the consequences of the defendant's negligence by the exercise of ordinary care and diligence after the same became apparent to her or she could have discovered the same by the exercise of ordinary care and diligence."

It is contended that this charge was erroneous because it contains an incorrect statement of the law and amounted to an expression of opinion that the defendant was negligent, and that the plaintiff was entitled to recover, provided she could not have avoided the consequences of such negligence by the exercise of ordinary care and diligence.

We can not agree with these contentions of the plaintiff in error. The charge of the court complained of in ground 5 of the amended motion when construed in connection with the entire charge of the court is not error for any reason assigned.

The charge must be construed in connection with what had been charged before the charge complained of and what the court charged afterwards. The court elsewhere in the charge gave to the jury full and complete instructions that it was the duty of the jury to determine whether or not a party has or has not been negligent under the circumstances and fully instructed the jury that the court had no opinion as to any of the facts in the case.

The court elsewhere in the charge instructed the jury in the following language: "Let me caution you here, gentlemen, that you are the judges of the facts in this case, and when I speak of negligence or other facts it is for you to determine whether a party has or has not been negligent under the circumstances. I have no opinion as to any of the facts in the case. I am merely attempting to give you the law applicable to the case."

In Cox v. Ware County, 52 Ga. App. 48, this court held that a charge very similar to the charge excepted to in this case was not error. The charge of the court in the Cox case, that, "If you should find from the evidence that the negligent acts of any agent of the plaintiff were not the proximate cause of any injuries received by the plaintiff, but contributed thereto," was not an expression of opinion on the part of the court that the defendant was negligent. See also, Pollard v. Gorman, 52 Ga. App. 134 (5b) (182 S.E. 678). Nor were the instructions relative to the alleged acts of negligence by the defendant subject to the exceptions that they intimated and expressed an opinion that such acts were in fact negligence, and were argumentative and prejudicial to the defendant. In Pollard v.Gorman, supra, after stating that the plaintiffs "charge" the acts as alleged in the petition, and stating that "whether the defendant was guilty of these several acts of negligence or not is a question of fact for you to determine," the judge, immediately following this language, said; "It is for you to say whether, as charged in the petition, the defendant was guilty of these acts of negligence; whether it was failure on the part of the defendant to use ordinary care in the operation of its train, it is a question of fact for you to determine." Elsewhere he emphasized to the jury that they must believe from the evidence that "the defendant was negligent in some or all of the particulars described in this petition, and that such negligence proximately caused the death of the decedent;" and that if from the evidence "you say that the defendant was not negligent in any of the acts set out in the petition, or if you say that the defendant was negligent as set out, but this negligence did not contribute to or cause the death of (the decedent), then under these circumstances the plaintiffs could not recover in this case."

The plaintiff in error having conceded that the evidence authorized the verdict and judgment, and none of the grounds of the amended motion showing any error requiring the grant of a new trial, the judgment of the trial court in overruling the motion for new trial is without error.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.