Akop v. Branson

• Decision Date: 05 December 1967
• Docket Number: No. 2,No. 43100,43100,2
• Citation: Akop v. Branson, 159 S.E.2d 185, 116 Ga.App. 775 (Ga. App. 1967)
• Parties: Hyman AKOP v. Mary Y. BRANSON
• Court: Georgia Court of Appeals

Page 185

159 S.E.2d 185

116 Ga.App. 775

Hyman AKOP v. Mary Y. BRANSON.

No. 43100.

Court of Appeals of Georgia, Division No. 2.

Dec. 5, 1967.

Conyers, Fendig, Dickey & Harris, J. Thomas Whelchel, Brunswick, for appellant.

No appearance for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

1. Where on the trial of an action seeking recovery for pain and suffering because of injuries received in an automobile collision the plaintiff's husband on direct examination testified over objection as to his observations of plaintiff and that when she moved her arm he could 'see the pain in her face' and if someone 'bumped into her, you could tell it hurt her' (see Macon R. & Light Co. v. Mason, 123 Ga. 773(8), 51 S.E. 569; Morgan v. Mull, 101 Ga.App. 36(4), 112 S.E.2d 661; Stewart v. Wilson, 92 Ga.App. 514, 88 S.E.2d 752; Bagwell & Stewart, Inc. v. Bennett, 214 Ga. 780, 107 S.E.2d 824; Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 5 S.E.2d 214; J. S. & L. Bowie & Co. v. Maddox & Goldsmith, 29 Ga. 285(1); Brewer v. Henson, 96 Ga.App. 501, 100 S.E.2d 661), and subsequently this same witness on cross examination testifies without objection that plaintiff is irritable 'when her arm hurts' and 'when her arm hurts' it affects her temperament, and 'it pains when she works and if she works a lot, her arm gets to bothering her, especially if she is doing something she has to use both arms. As long as she can use one arm, use the right arm and do it, it doesn't bother her. If she has to use her left arm to do something, it bother her,' the admission of the evidence on direct examination over objection, if error, is harmless and does not require a reversal. General Tire & Rubber Co. v. Brown Tire Co., Inc., 46 Ga.App. 548(3c), 168 S.E. 75; Lee v. Holman, 184 Ga. 694, 697(5), 193 S.E. 68; Moore v. State, 193 Ga. 877(2), 20 S.E.2d 403; Southeastern Greyhound Lines, Inc. v. Hancock, 71 Ga.App. 471(2), 31 S.E.2d 59.

2. 'According to the practice in this State, the failure of the plaintiff to support some of the allegations in his declaration by evidence, is no reason why the allegations should be stricken out on motion of counsel for the defendant.' Georgia Hydratane Gas, Inc. v. White, 110 Ga.App. 826(3), 140 S.E.2d 129; Andrews v. Andrews, 85 Ga. 276, 282(1), 11 S.E. 771; Richmond & Danville R. Co. v. Worley, 92 Ga. 84, 87(1), 18 S.E. 361. Defendant's exceptions to the denial of its motion to strike certain allegations in plaintiff's petition which defendant contended were not supported in the evidence are without merit.' United States Fidelity, etc., Co. v. Luttrell, 113 Ga.App. 176, 178(4), 147 S.E.2d 647, 649.

3. The collision occurred when plaintiff was making a left turn after giving a signal and was struck by defendant who was attempting to pass on her left. Plaintiff had testified that she did not see the defendant's car in her rearview mirror, and did not look in her left sideview mirror. The defendant submitted no evidence. Complaint is made because the court refused to give the following charge requested orally at the time for objecting to the charge of the court: 'If you find from the evidence, by the exercise of ordinary care, plaintiff could have discovered the peril which existed, namely the oncoming defendant's vehicle, and did not exercise such care, and proceeded to turn the vehicle into the path of the defendant's vehicle, then I charge you she failed to avoid the consequences of the peril and you...