Darby v. McNelley, 38798
| Decision Date | 25 April 1961 |
| Docket Number | No. 38798,No. 3,38798,3 |
| Citation | 120 S.E.2d 153,103 Ga.App. 570 |
| Parties | R. M. DARBY v. C. W. McNELLEY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The trial court erred in overruling the plaintiff's amended motion for new trial.
Rufus M. Darby, doing business as Darby Printing Company, sued C. W. McNelley to recover an amount of money allegedly due the plaintiff on a past due account. The defendant filed his answer which, as amended, alleged that the plaintiff was indebted to him in a larger amount than the plaintiff had sued to recover and, after admitting a part of the indebtedness claimed by the plaintiff, prayed for a recovery of the balance.
The evidence adduced on the trial of the case disclosed that the defendant had been employed by the plaintiff for a long number of years, that for a period of time the defendant held the position of a printing salesman with the plaintiff, that in March, 1953, a new contract as to the defendant's compensation was entered into, and that this contract (prepared by the plaintiff), provided in part: * * *' The evidence also disclosed that in May, 1958, the defendant had drawn more than his anticipated income, that on September 26, 1958, the defendant wrote a letter resigning from the employment of the plaintiff, that such letter of resignation referred to a 'difference' between the parties with reference to a customer account, that certain orders procured by the defendant had been manufactured but not shipped as of the date the defendant left the plaintiff's employ, and that other orders procured by the plaintiff were manufactured after such date. The plaintiff testified that the defendant resigned, while the defendant testified that he wrote the letter of resignation after the plaintiff had in fact fired him.
The jury returned a verdict for the defendant, without specifying any amount of recovery, and thereafter the plaintiff's amended motion for new trial was overruled. The plaintiff now assigns error on the judgment overruling his motion for new trial.
Hurt, Gaines, Baird, Peek & Peabody, William W. Horton, Atlanta, for plaintiff in error.
John L. Westmoreland, John L. Westmoreland, Jr., Atlanta, for defendant in error.
1. Special grounds numbered 4, 6, 7 and 8 of the amended motion for new trial complain that the trial court erred in admitting evidence dealing with items 4, 5 and 7 of the employment contract. The complaint is that such sums were to be paid annually, that the defendant was not an employee for all of 1958, and that therefore he was not entitled to either sum for any part of 1958, and that the admission of such evidence was prejudicial to the plaintiff.
Such contention is without merit for there was evidence that the defendant was fired, and if the jury believed that the defendant was fired without cause then the defendant would be entitled to such items for the part of the year he was employed. The admission of such evidence was not error. See Haag v. Rogers, 9 Ga.App. 650, 72 S.E. 46; Craig v. Baggs, 64 Ga.App. 850, 14 S.E.2d 156.
2. Special ground 5 complains that the trial court expressed an opinion while ruling on the admissibility of certain evidence. No objection or motion for mistrial appears to have been made at the time the remark was allegedly made. "Where the court, in a colloquy with counsel, makes remarks which are prejudicial or intimate an opinion upon the merits of the case, proper objection, or a motion for mistrial, should be made at the time of the occurrence. In the absence of such objection, error cannot be assigned thereon for the first time in a motion for new trial.' Head v. Pollard Lumber Sales, 88 Ga.App. 757(2), 77 S.E.2d 827; Moore v. McAfee, 151 Ga. 270(11), 106 S.E. 274; Adams v. State, 171 Ga. 90(8), 154 S.E. 700; Ealy v. Tolbert, 210 Ga. 96, 78 S.E.2d 26.' Lumbermen's Underwriting Alliance v. Jessup, 100 Ga.App. 518,...
To continue reading
Request your trial
-
Mitchell v. Gay, 41074
...a motion for new trial.' Lumbermen's Underwriting Alliance v. Jessup, 100 Ga.App. 518, 533(5), 112 S.E.2d 337, 349; Darby v. McNelley, 103 Ga.App. 570, 571(2), 120 S.E.2d 153. This rule obtains where the remark which allegedly expresses or intimates the court's opinion occurs in the course ......
-
Wood v. Hamilton
...Lumbermen's Underwriting Alliance[109 Ga.App. 611] v. First Natl. Bank etc. Co., 100 Ga.App. 217, 223, 110 S.E.2d 782; Darby v. McNelley, 103 Ga.App. 570, 120 S.E.2d 153; Flanigan v. Reville, 107 Ga.App. 382, 384, 130 S.E.2d 258. 4. Special grounds 4, 7, and 9 of the amended motion for new ......
-
Palmer v. Stevens, 42265
...757, 759(2), 77 S.E.2d 827; Lumbermen's Underwriting Alliance v. Jessup, 100 Ga.App. 518, 533(5), 112 S.E.2d 337; Darby v. McNelley, 103 Ga.App. 570, 571(2), 120 S.E.2d 153; Flanigan v. Reville, 107 Ga.App. 382, 383(5), 130 S.E.2d 258; Wood v. Hamilton, 109 Ga.App. 608, 610(2), 137 S.E.2d 6......
-
Kapplin v. Seiden
...Pulliam v. State, 196 Ga. 782, 783(6-7), 28 S.E.2d 139; Simmons v. State, 79 Ga.App. 390, 409(5), 53 S.E.2d 772; Darby v. McNelley, 103 Ga.App. 570, 571(2), 120 S.E.2d 153. 4. Special grounds 3, 4 and 5 complain because the court excluded certain evidence offered by the defendant. These gro......