Douglas v. American Cas. Co. of Reading, Pa.
| Decision Date | 11 October 1962 |
| Docket Number | No. 39643,No. 1,39643,1 |
| Citation | 128 S.E.2d 364,106 Ga.App. 744 |
| Parties | Henry J. DOUGLAS v. AMERICAN CASUALTY COMPANY OF READING, PA |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Errors assigned in the exclusion of documentary evidence cannot be considered by this court where the evidence is not in the bill of exceptions, or attached to it as exhibits properly identified by the trial judge, or embodied in an approved brief of evidence and brought up as part of the record.
2. The ground of a motion for new trial that the trial judge permitted the opposing party constantly and repeatedly to make loud and argumentative objections to questions and documentary evidence offered by the movant is without merit where there is not shown any abuse of the discretion allowed the trial court as to the range of argument.
3, 4. Where there is no showing of prejudice in the ground of the motion for new trial, the assigned error is without merit.
5. In an action for medical and hospital benefits for a specific disease where the evidence reveals that no definite diagnosis was reached, the evidence is neither prima facie nor conclusive in favor of the plaintiff, and the motion for new trial on this ground was properly overruled.
Plaintiff brought action upon a medical and hospitalization policy covering specific diseases, contending that he had become ill from one of the diseases listed and was entitled to benefits under the policy.
The defendant filed demurrers and an answer. After the ruling on demurrers, plaintiff rewrote his petition which was amended to charge that the defendant owed certain sums to the plaintiff for hospital and doctor's bills for treatment of encephalitis as covered under a policy issued by the defendant.
At the jury trial the only witnesses testifying were Dr. James T. Hughes and the plaintiff. The physician testified that his office examined the plaintiff but that he had nothing to do with the examination which was carried on by his partner. The defendant objected to the physician's testifying on several bases.
After the plaintiff rested, counsel for defendant moved to rule out the opinion and diagnosis of Dr. Hughes which rested upon a laboratory report. This contention being sustained, the defendant then moved the court to direct a verdict in favor of the defendant, which was done.
The trial court overruled the plaintiff's amended motion for new trial on all grounds to which ruling exceptions were taken.
C. M. Seward, Atlanta, for plaintiff in error.
Palmer H. Ansley, Smith, Field, Ringel, Martin & Carr, Atlanta, for defendant in error.
1. The amended motion for new trial refers to certain exhibits which do not appear in the record and are not properly identified by the trial judge. It is obvious that this court cannot consider the alleged error in the exclusion of documentary evidence when the evidence appears nowhere in the record. Where the errors complained of relate to and require a consideration of evidence, it must be brought up in the bill of exceptions or attached to it as exhibits properly identified by the trial judge or embodied in an approved brief of evidence and brought up as a part of the record. Unless one of these methods is employed, the evidence is not before this court, and obviously the errors based on the missing evidence cannot be considered. Flowers v. General Motors Acceptance Corp., 84 Ga.App. 681, 683(1), 67 S.E.2d 159. See also Warren v. Hiers, 105 Ga.App. 202(1), 124 S.E.2d 445. This disposes of special grounds numbered 1, 2, 3, 5, 8 and 10.
2. Special ground 4 contends that the court erred in permitting the defense constantly and repeatedly to make loud and argumentative objections to questions and documentary evidence offered by the plaintiff.
This ground has no merit.
The widest range of expression and forensic expression must be allowed to counsel. Spence v. Dasher, 63 Ga. 430; Southern Railway Co. v. Wright, 6 Ga.App. 172, 174, 64 S.E. 703. The range of argument is within the discretion of the court. Adkins v. Flagg, 147 Ga. 136, 93 S.E. 92; Black & White Cab Co. v. Clark, 67 Ga.App. 170(12), 19 S.E.2d 570.
The matter of loudness of voice is necessarily a matter of degree and largely subjective in nature depending upon the state of efficiency of the hearer's auditory system. Objections...
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