Attaway v. Morris

Decision Date06 January 1965
Docket NumberNo. 40958,No. 3,40958,3
Citation110 Ga.App. 873,140 S.E.2d 214
PartiesLloyd K. ATTAWAY v. Joe F. MORRIS
CourtGeorgia Court of Appeals

Fullbright & Duffey, W. O. Green, Jr., Rome, and Henderson, Kaley, Geiger & Thurmond, James Geiger, Marietta, for plaintiff in error.

Matthews, Maddox, Walton & Smith, and Charles C. Shaw, Rome, for defendant in error.

Syllabus Opinion by the Court

JORDAN, Judge.

This was an automobile collision case in which the defendant filed a cross action. The jury found for the defendant on his cross action and the exception is to the denial of the plaintiff's amended motion for new trial. Held:

1. Special ground 4 assigns error on the refusal of the trial court to allow the defendant to answer the following question propounded to him on cross examination: 'Well, then this is in error when you say it was alleged?' It is alleged in this ground that the refusal to allow the witness to answer was prejudicial in that the defendant had alleged in his pleadings in paragraph 28(e) that he could not pull to the right on account of following traffic in the easternmost northbound lane, while, on the trial, the defendant testified that he didn't recall any traffic following him in that lane of traffic.

The record discloses that the defendant's testimony in respect to the issue was as follows: 'It's according to where that portion is in the petition, I guess, whether it's in error, or whether it isn't. I don't recall any traffic following me in the easternmost lane of traffic. In Paragraph 28-3 [sic] of my pleadings, I allege that I could not pull to the right on account of following traffic in the easternmost lane. I assumed that there was traffic in that lane. I didn't have time to give a signal. I didn't have time to particularly watch for that lane. Well, traffic goes up the street. I was trying to watch the man to try to miss him. I didn't have time to look in my rear view mirror and give the proper signal to get into the right lane to see if there was any traffic. He stopped and I tried to miss him. No, sir, I don't guess I did know whether there was any traffic there or not.'

This ground is without merit as it thus appears from the record that the plaintiff's counsel in effect received an answer to his question; and in any event it was for the jury and not the defendant to determine whether or not his pleadings were supported by the evidence.

2. It was not error as contended in special ground 5 to allow the defendant to testify as to the fair rental value of an automobile for one day over the objection that no proper foundation had been laid for such expert testimony. It was not necessary for the defendant to be qualified as an expert in order to give the testimony elicited where, as here, he had knowledge of facts on which to predicate his opinion, Slaton v. Fowler, 124 Ga. 955(2), 53 S.E. 567; and it is immaterial that his knowledge depended on hearsay as such would go to the weight and not to the admissibility of the evidence. Gulf Refining Co. v. Smith, 164 Ga. 811(4), 139 S.E. 716.

3. Special ground 6 complains of the refusal of the trial court to allow the plaintiff's doctor to read into evidence an 'X-ray report' prepared by someone else. This ground is without merit as such report clearly constituted hearsay. The contention of the plaintiff that the report was admissible as an exception to the hearsay rule for the purpose of explaining the course of conduct of the doctor is unavailing here as it does not appear that the reading of the report was offered for this limited purpose.

4. Special ground 7 which complains of the failure of the court to give certain principles of law in charge to the jury is too incomplete to present any question for determination since this ground does not set forth the pleadings and evidence supporting the charges which it is contended the court should have given, nor is there pointed out where in the record these are to be found. Mazzola v. Swift Mfg. Co., 108 Ga.App. 313, 132 S.E.2d 812.

5. Special ground 8 assigns error on the following excerpt from the charge of the court as being erroneous as an abstract principle of law: 'The law of this State does not impose upon the driver of a motor vehicle the absolute duty to have his vehicle under such control that he can bring it to a stop in order to avoid injury to any person or property which may be in the path of such motor vehicle.' This ground is without merit as there is no absolute duty upon a motorist to have his vehicle under such control that he can bring it to a stop in order to avoid injury to person or property, the duty of a motorist in this regard being provided in Code Ann. § 68-1626(a) as follows: 'No person shall drive a vehicle on a street or highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.'

6. Special ground 9 which contends that the court committed prejudicial error in charging a principle of law twice is without merit. Dixie Mfg. Co. v. Ricks, 30 Ga.App. 433(4), 118 S.E. 452; Wilson v. Barnard, 10 Ga.App. 98(5), 72 S.E. 943.

7. Special ground 10 assigns error on the following excerpt from the charge of the court: 'You will determine just what sort of injury he [referring to the plaintiff] received, if any; his character of producing or not producing pain [emphasis supplied], * * * its probable duration, whether it has ceased, or whether it continues to this date, or whether it may continue in the future,' it being contended that the italicized portion of the above charge constituted an intimation and expression of the court's opinion as to the character of the plaintiff. The use of the word 'his' in place of the word 'its' was clearly a slip of the tongue on the part of the court; and in context used, such verbal inaccuracy could not have misled the jury into believing that the court was referring to the character of the plaintiff rather than to the character of the plaintiff's injuries. This ground is without merit. Southern Ry. Co. v. Merritt, 120 Ga. 409(1), 47 S.E. 908; City of Summerville v. Sellers, 94 Ga.App. 152(7), 94 S.E.2d 69.

8. Special ground 11 which contends that the trial court erred in failing to charge the jury the provisions of Code Ann. § 68-1635(b) after having charged the provisions of Code Ann. § 68-1635(a) is without merit. Section b of this statute requires the driver of the overtaken vehicle, under certain conditions, to give way to the right upon the audible signal of the overtaking vehicle; it does not require the overtaking vehicle to give an audible signal before passing.

Accordingly, since the evidence disclosed that the defendant, as the driver of the overtaking vehicle, did not give a signal to the plaintiff before attempting to pass him, the court would have committed prejudicial error to the plaintiff, if, as contended by the plaintiff, it had charged ...

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10 cases
  • Wright v. Dilbeck
    • United States
    • Georgia Court of Appeals
    • July 2, 1970
    ...which may be on the crossing.' This charge set forth a correct abstract principle of law. See in this connection Attaway v. Morris, 110 Ga.App. 873(5), 140 S.E.2d 214, where a similar charge relating to corollary duties of a motorist was held not erroneous. Whether or not the trial judge in......
  • Newcomb v. Pattillo
    • United States
    • Georgia Court of Appeals
    • March 28, 1969
    ...See Hay v. Carter, 94 Ga.App. 382, 384, 94 S.E.2d 755; Davenport v. Robinson, 109 Ga.App. 753, 755, 137 S.E.2d 380; Attaway v. Morris, 110 Ga.App. 873, 874(5), 140 S.E.2d 214; Thomason v. Willingham, 118 Ga.App. 821, 165 S.E.2d 865. Subsequently, the court correctly charged tht 'a leading v......
  • Fouts v. Builders Transport, Inc.
    • United States
    • Georgia Court of Appeals
    • August 21, 1996
    ...Inc., 138 Ga.App. 80, 82(4), 225 S.E.2d 473 (1976) (tractor-trailer struck another truck in the rear); Attaway v. Morris, 110 Ga.App. 873, 874(5), 140 S.E.2d 214 (1965) (collision due to lane In the present case, it is undisputed that Brinser's tractor-trailer ran the red light. Thus, Brins......
  • Stouffer Corp. v. Henkel, 67138
    • United States
    • Georgia Court of Appeals
    • February 29, 1984
    ...certain of his opinions thereon. The records prepared by the other doctors were themselves hearsay. See Attaway v. Morris, 110 Ga.App. 873, 874(3), 140 S.E.2d 214 (1965). We know of no rule of law which would mandate the admission into evidence of hearsay simply because a witness has errone......
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