Essig v. Cheves

• Citation: 44 S.E.2d 712
• Decision Date: 19 September 1947
• Docket Number: No. 31599.,31599.
• Parties: ESSIG . v. CHEVES.
• Court: Georgia Court of Appeals

44 S.E.2d 712

ESSIG .

v.CHEVES.

No. 31599.

Court of Appeals of Georgia,

Division No. 2.

Sept. 19, 1947.

Rehearing Denied Oct. 29, 1947.

Syllabus by the Court.

1. Where the plaintiff in error makes no contention that the verdict and judgment of the court should be set aside because of lack of evidence to support it, the general grounds of the motion for a new trial will be treated as abandoned. Code, § 6-1308; Gullatt v. State, 14 Ga.App. 53, 54(10), 80 S.E. 340; Green v. Lingo, 180 Ga. 853(1), 181 S.E. 148.

2. When evidence is offered and its admissibility challenged, counsel may state the reason why such evidence should be allowed, and when in the course of such a colloquy between counsel and the court, counsel acting in good faith and not in a manner calculated to prejudice the jury, no ground for a mistrial is afforded. Walkerv. State, 124 Ga. 97, 98, 52 S.E. 319. The matter is addressed largely to the discretion of the trial judge, in whose presence the argument was made, and who sees and is in position to judge of the demeanor of counsel. Atlantic Coast Line Railway Co. v. Jones, 132 Ga. 189, 202, 63 S.E. 834.

3. Assignment of error upon the admission of evidence complaining that the same creates a false and prejudicial issue, in order to be complete, must set out how the evidence was prejudicial and what false issue was created. See Code, § 6-1607; Collins v. Carr, 111 Ga. 867(1), 36 S.E. 959; Binion v. Georgia So. & F. R. Co. 118 Ga. 282, 285, 45 S.E. 276.

4. Testimony of the manager of a business that on a certain occasion one of the employees thereof was on the business of the principal, is not a conclusion of the witness, but a statement of fact, the accuracy of which may be tested by cross-examination and other existing methods. Scott v. Kelly-Springfield Tire Co., 33 Ga. App. 297, 298(6), 125 S.E. 773; Sankey v. Columbus Iron Works, 44 Ga. 228(3); Shaw v. Jones, Newton & Co., 133 Ga. 446(3), 66 S.E. 240.

5. An operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting highway, but shall give the right of way to an operator of a vehicle approaching from the right on an intersecting highway. Code, § 68-303(g). This rule that at an intersection driver on the right shall have the right of way is not limited to two vehicles coming to an intersection simultaneously, or practically so, but is applicable to any situation where the distances between the two vehicles, their relative speeds, or any other circumstances show that the driver on the left should reasonably apprehend a collision would occur unless he yielded the right of way. Smelt-zer v. Atlanta Coach Co., 49 Ga.App. 755(1), 176 S.E. 846.

6. In order to determine whether a portion of the charge of the court is error, the charge must be construed as a whole. Brooks v. State, 19 Ga.App. 45, 90 S.E. 971; Howard v. Macon Ry. & Light Co., 17 Ga.App. 55, 86 S.E. 256. Error from City Court of Macon; Cecil A. Baldwin, Judge.

Action by Mrs. Mary Cheves against Mrs. Pearl Essig, trading in the name of Jack Mann Battery Company, and Doyle Mimbs, for damages arising out of an automobile collision. To review an adverse judgment, defendant brings error.

Judgment affirmed.

Mrs. Mary Cheves sued Mrs. Pearl Essig, trading in the name of Jack Mann Battery Company, and Doyle Mimbs, in the City Court of Macon. In this action Mrs. Cheves sought to. recover damages in the sum of $5,000 because of personal injuries and property damages resulting to her from a collision between the car in which she was riding and a car, the property of Mrs. Pearl Essig, which at the time of the collision was being operated by Mrs. Essig's employee, Doyle Mimbs. The jury trying the case returned a verdict for Mrs. Cheves in the sum of $5,000, the full amount for which she prayed.

The issues made by the pleadings were clear cut and simple. The plaintiff's petition described a collision between her car and the Essig car at a street intersection in the City of Macon. Plaintiff's car was being driven by her minor son, and as above stated the Essig car was being driven by Doyle Mimbs.

The original acts of negligence charged against Mimbs were two: first, It was alleged that he approached the intersection at a rate of speed in excess of 50 miles per hour, and that this speed was a violation of the ordinance of the City of Macon; and second, It was alleged that Mimbs failed to give any warning to the plaintiff that he was approaching the intersection, notwithstanding the fact he saw plaintiff's car.

At the trial of the case plaintiff amended her petition, both as to the acts of negligence and as to the special damages which she sustained. The allegations in the amendment on negligence made no substantial change in the case. The amendment contains a statement that Doyle Mimbs failed to slow down the Essig car.

In her answer, Mrs. Essig denied the material allegations of the plaintiff's peti-tion, and also alleged that any injuries which she might have suffered were the result of the negligence of the plaintiff and her son, who failed to exercise ordinary care and diligence at the time of the collision. The answer also contained a statement that if Mrs. Essig was negligent, which she denied, plaintiff could have avoided the consequences of such negligence by the exercise of ordinary care and diligence.

Mrs. Cheves' petition alleged that Doyle Mimbs, at the time of the accident, was the agent of the defendant, and was acting within the scope of his duties and was on the business of the defendant at the time and place of the accident. The answer of Mrs. Essig denied this allegation in the petition, thereby raising an issue of agency.

At the trial of said cause Mrs. Essig amended her separate answer and alleged that plaintiffs car at the time of the accident was being operated in excess of 20 miles per hour, in violation of an ordinance of the City of Macon, and further that at the time and place of the accident the operator of her car, Doyle Mimbs, had the right of way by reason of the fact that he was approaching said intersection from the right which, under the ordinance of the City of Macon, gave him the right-of-way at the intersection where the collision occurred.

The defendant, Doyle Mimbs, through the law firm of Hall & Bloch, filed a separate demurrer and answer in said case. They were practically identical in form and substance with the separate demurrer and answer of the defendant, Mrs. Essig.

Three major issues were involved on the trial of the cause: first, Negligence, --Each of the parties contended that the collision resulted from the negligence of the other party. In addition, the defendant in the trial court introduced into the case the doctrines of comparative and contributory negligence by her answer; second, --the second issue involved the agency of Doyle Mimbs at the time and place of the wreck; third, --the third issue was the nature and extent of Mrs. Cheves' injuries and property damage.

There was evidence in the record on the three major issues which supports the verdict of the jury. On the first two issues the jury could have found in favor of the plaintiff in error and such finding would have been supported by the evidence. On the third issue of Mrs. Cheves' injuries and property losses there was evidence to support the verdict.

Harris, Harris, Russell & Weaver, of Macon, for plaintiff in error.

E. W. Maynard and S. G. Jones, both of Macon, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. It is not necessary to set forth any of the evidence introduced on the trial of the case on the issues raised by the pleadings inasmuch as the plaintiff in error concedes that the verdict and judgment of the trial court should not be set aside because of the lack of evidence to support it. This concession is an abandonment of the general grounds of the motion for a new trial by plaintiff in error. Gullatt v. State, 14 Ga.App. 54(10), 80 S.E. 340; Green v. Lingo, 180 Ga. 853(1), 181 S.E: 148.

2. In ground 1 of the amended motion complaint is made that the court erred in refusing to declare a mistrial on account of statements made by counsel for defendant in error and set out in that ground of the amended motion. The colloquy between the court and counsel, which they contended was prejudicial error requiring the grant of a mistrial, is the following: Harold Graham was called as a witness by counsel for the plaintiff in error. He testified when he was giving the deposition on the 26th day of September, 1946, that an insurance man and investigator came to see him and asked him questions with reference to whether or not he was out in Vineville on the date the accident occurred. He further testified that he told the insurance man he was not out there. When this deposition was taken counsel for the plaintiff in error called attention to the fact, rights were being reserved to object to this testimony when it was offered on the trial of the case. When this testimony was offered at the trial of the case the following occurred:

"Q. Did an investigator, an insurance man, come to see you and ask you questions with reference to whether or not you were out in Vineville on this date that I referred to? A. Yes, sir.

"Gen. Russell: Your Honor, please, here is some testimony about a conversation between a witness and an insurance adjuster, which is irrelevant, and immaterial and it is hearsay.

"The Court: You can show that fact. It is the conversation that is objected to.

"Mr. Maynard: What I am trying to do is prove that he did come to sec him.

"The Court: I am leaving that in.

"Mr. Maynard: The statement is to the effect that Mimbs went to Vineville to see Harold and Harold says this Adjuster came to see him and he told him he was not out there. He is obliged to know that part of Mimbs' statement could not be true. I submit it is admissible.

"Gen. Russell: We know all parts of that statement...