Davis v. Atlanta Coca Cola Bottling Co., 44042

• Decision Date: 24 February 1969
• Docket Number: No. 2,No. 44042,44042,2
• Citation: 167 S.E.2d 231,119 Ga.App. 422
• Parties: Homer L. DAVIS v. ATLANTA COCA COLA BOTTLING COMPANY et al
• Court: Georgia Court of Appeals

Page 231

167 S.E.2d 231

119 Ga.App. 422

Homer L. DAVIS v. ATLANTA COCA COLA BOTTLING COMPANY et al.

No. 44042.

Court of Appeals of Georgia, Division No. 2.

Feb. 24, 1969.

Rehearing Denied March 19, 1969.

Certiorari Denied April 24, 1969.

Jones & Read, Charles D. Read, Jr., Reginald H. Johnson, Atlanta, for appellant.

Hurt, Hill & Richardson, James C. Hill, Robert L. Todd, Atlanta, for appellees.

Syllabus Opinion by the Court

HALL, Judge.

After a verdict and judgment for the defendant in this negligence action involving collision of vehicles on a congested expressway the plaintiff appeals.

1. Assuming but not deciding that a different verdict would have been authorized, the evidence did not demand a verdict for the plaintiff. Therefore the court did not err in entering judgment on the verdict. O'Neil v. Moore, 118 Ga.App. 424, 429, 164 S.E.2d 328. The case of D. G. Machinery & Gage Co. v. Hardy, 118 Ga.App. 45, 162 S.E.2d 852, upon which the plaintiff relies, did not hold that the evidence demanded a verdict for the plaintiff, but that it was error to dismiss the action because the plaintiff's evidence authorized an inference of negligence by the defendant.

2. The court did not err, upon request for sequestration of witnesses, in giving the plaintiff the option of testifying first himself or leaving the courtroom while he first presented other witnesses. The action of the court was proper to preserve the defendant's right to sequestration of the witnesses and the plaintiff's right to be present during the whole trial of the case. Tift v. Jones, 52 Ga. 538, 542.

3. The trial court permitted the defendant to elicit by cross examination the plaintiff's testimony that during the six months following the accident when he did not work he received disability benefits under an insurance policy. The plaintiff objected to the evidence and moved for a mistrial on the ground that the testimony had no relevance to any issue in the case and was prejudicial to him. The parties agree that the evidence was not admissible to show mitigation of damages, but the defendant argues it was admissible for the purpose of showing the plaintiff's motive for absence from work. This evidence related only to recoverable damages. It could not have been prejudicial unless the jury determined that negligence of the defendant was the preponderating cause of the plaintiff's injury and then proceeded to consider the issues of damages. There was uncontradicted evidence of injury, pain and suffering, and medical expenses incurred by the plaintiff. He was knocked into a daze and didn't know what was going on after the collision, couldn't move his car, and was moved from the scene by an ambulance and taken to a hospital where he was x-rayed and then taken to a doctor's office. This evidence would have resulted in the...