Battle v. Strother
| Decision Date | 28 June 1984 |
| Docket Number | No. 67840,67840 |
| Citation | 319 S.E.2d 887,171 Ga.App. 418 |
| Parties | BATTLE v. STROTHER. |
| Court | Georgia Court of Appeals |
Richard B. Eason, Jr., Carolyn J. Kennedy, Atlanta, for appellant.
E. Graydon Shuford, George P. Graves, Decatur, for appellee.
Appellee instituted the instant action against appellant to recover for property damage incurred as a result of a collision between the parties' vehicles. A jury trial was held, and appellee was awarded damages in the amount of $1,000. Judgment was entered on the verdict, and appellant appeals.
voir dire. Following a luncheon recess, attorney Shuford was replaced by attorney Graves, who represented appellee throughout the remainder of the proceedings. Appellant objected to appellee's substitution of counsel on the ground that it curtailed his right to appropriate voir dire of prospective jurors. See OCGA § 15-12-133. Appellant enumerates as error the overruling of his objection.
Appellant asserts that he did not have the opportunity to qualify the jurors as to Graves. However, the record shows that the trial court made proper inquiry of the jurors regarding Graves immediately before he began to participate in the proceedings. Appellant was also afforded the opportunity to question the jurors as to Graves at that time. Since appellant was not denied effective voir dire, the substitution of counsel was not error for the reason assigned.
The first mention of the word "insurance" occurred when appellee described a car parked at the scene of the collision as being owned by an "insurance man." This remark clearly had no bearing on any issues in the case and could not have been so construed.
Reference was made to insurance on three other occasions during the trial. The first of these occurred when appellee was asked on cross-examination whether an appraiser had examined her car. She replied that a lady from "Dairyland and Company" had done so. Second, a claims adjuster, who was describing his qualifications as an expert, stated that he had previously worked for several insurance companies, mentioning two such companies by name. Finally, insurance was mentioned during the testimony of a witness who had been a passenger in appellee's car at the time of the collision. In describing his version of the incident, this witness said that appellant had "no insurance papers with him" when the collision occurred. Appropriate curative instructions were given to the jury following this testimony.
Goins v. Glisson, 163 Ga.App. 290, 292, 292 S.E.2d 917 (1982). While we strongly approve of this general rule, it is not applicable to the case at bar. The references to insurance which occurred were merely incidental, and did not disclose whether or not appellant was covered by a policy of insurance. Appellant could not have been prejudiced thereby. Under these circumstances, a mistrial on the ground that insurance had been interjected into the case was not required, and the trial court did not err in denying appellant's motions. See Ideal Pool Corp. v. Champion, 157 Ga.App. 380, 277 S.E.2d 753 (1981); Meatows v. Oxford, 124 Ga.App. 778, 186 S.E.2d 343 (1971).
3. Prior to trial, appellant propounded to appellee a request for certain admissions. Although appellee did not timely respond to that request, a response was eventually submitted to appellant after almost 60 days had passed.
At trial, appellant moved for a directed verdict after appellee rested her case. One of the bases of the motion was appellant's assertion that the matters set forth in the request for admissions were deemed admitted as a matter of law by virtue of appellee's untimely response. These admissions would have established that appellant was not liable to appellee. After that motion was made, appellee moved to withdraw the statutory admissions resulting from her failure to respond timely, and to substitute therefor the untimely response which she had previously submitted to appellant. Over appellant's objection, appellee's motion was granted. The overruling of appellant's objection to appellee's motion is enumerated as error.
OCGA § 9-11-36(b) provides in pertinent part: "[T]he court may permit withdrawal or amendment [of statutory admissions] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits." The propriety of the trial court's grant or denial of a motion to withdraw admissions must be evaluated in light of the standards set forth in the concurring opinion of Justice Hill in Cielock v. Munn, 244 Ga. 810, 262 S.E.2d 114 (1979), and adopted by the Supreme Court in Whitemarsh Contractors v. Wells, 249 Ga. 194, 288 S.E.2d 198 (1982).
Applying those standards to the case at bar, we find that because appellant failed to make a satisfactory showing that he would be prejudiced in maintaining his defense on the merits, the trial court's grant of appellee's motion to withdraw admissions was not erroneous. Appellant received appellee's response to his request for admissions several months in advance of trial. It cannot be said that appellant was surprised, or was thwarted or hindered in his efforts to prepare his case. "[T]here is nothing to show that [appellant] would be prejudiced by the withdrawal of admissions save that [he] would lose a judgment obtained in effect by default[,] which ... is not a valid basis to establish prejudice." Moore Ventures Limited Partnership v. Stack, 153 Ga.App. 215, 219, 264 S.E.2d 725 (1980). "[A]ny party is certainly 'prejudiced' by being forced to try a case rather than take [, in effect,] a default, but he is not prejudiced in trying the merits of the case, which is the question at issue." (Emphasis in original.) Alexander v. H.S.I. Mgt., 155 Ga.App. 116, 117, 270 S.E.2d 325 (1980). Davenport v. Smith, 157 Ga.App. 870, 871, 278 S.E.2d 691 (1981).
4. Appellant also enumerates as error the trial court's denial of his motion for directed verdict based upon appellee's alleged lack of standing to maintain the action. Appellant contends that there was no showing that appellee was the owner of the car which was involved in the collision.
At trial, a bill of sale was introduced into evidence which showed the purchaser of the car to be appellee's grandson, rather than appellee herself. However, there was evidence that appellee's grandson had permitted the car to be purchased in his name for credit purposes, and that appellee had actually paid...
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