Goodyear Tire & Rubber Co. v. Johnson
| Decision Date | 03 September 1969 |
| Docket Number | No. 44484,No. 1,44484,1 |
| Citation | 120 Ga.App. 395,170 S.E.2d 869 |
| Court | Georgia Court of Appeals |
| Parties | GOODYEAR TIRE & RUBBER COMPANY, Inc. v. Josh B. JOHNSON |
Syllabus by the Court
1. The ruling by this court, when the case was previously here, that the evidence did not demand a verdict for either party, is the law of the case.
2. The allowance of certain testimony is not reversible error where evidence substantially to the same effect is adduced or where counsel on cross examination of the witness elicited testimony comparable in import to that to which objection was made.
3. A charge regarding the liability of joint tort feasors was not error for the reasons assigned.
Josh Bill Johnson filed suit in Richmond Superior Court against the Goodyear Tire & Rubber Company, Inc., in which he sought damages for injuries received because of the alleged negligence of the defendant's employee or agent. The defendant filed an answer in which it denied the allegations of negligence and set forth that the injuries sustained by the plaintiff were caused by his own negligence, or the negligence of others for whom the defendant was not responsible, or was an accident pure and simple.
This is the second apearance of the case in this court. See Goodyear Tire & Rubber Company v. Johnson, 117 Ga.App. 278, 160 S.E.2d 211. On the first trial the jury returned a verdict in favor of the defendant and the trial court granted the plaintiff a new trial. This court affirmed. On the trial of the instant case, after the plaintiff had introduced his evidence the defendant moved for a directed verdict which was overruled. No evidence was introduced by the defendant and the jury returned a verdict for the plaintiff in the amount of $40,000.
The defendant's amended motion for new trial was overruled. From this judgment appeal was taken.
Calhoun & Kernaghan, William C. Calhoun, Augusta, for appellant.
George B. Rushing, Fulcher, Fulcher, Hagler, Harper & Reed, Gould B. Hagler, Augusta, for appellee.
1. On the prior appearance of this case the Court of Appeals held that the evidence did not demand a verdict. Goodyear Tire & Rubber Company v. Johnson, 117 Ga.App. 278, 160 S.E.2d 211. Counsel for the appellant concedes that the evidence in the second trial 'was almost identical' to the evidence on the first trial. We examined the record when this case was previously before the court and have determined that the evidence as to all material aspects is virtually equivalent to that adduced in the present record.
When this court in considering a motion for new trial after the first trial of a case held that the evidence did not demand a verdict for either party, the ruling is the law of the case. King v. Simmons, 110 Ga.App. 494, 138 S.E.2d 919; Code Ann. § 81A-160(h) (Ga.L.1966, pp. 609, 622; 1967, pp. 226, 239). Hence, it was not error to overrule the general grounds of the motion for new trial and the first two enumerations of error are without merit.
2. Grounds 3, 4 and 5 of the enumeration of errors complain of the admission of certain testimony given by three different witnesses. In each case substantially the same evidence was admitted without objection in testimony by other witnesses or elicited on cross examination of the same witness. In such circumstances the rule is applicable that the allowance of evidence, even though erroneous as contended, does not require reversal of the judgment complained of where testimony substantially to the same effect is adduced or where counsel on cross examination of the witness and with full knowledge of the character of the evidence to be expected elicited testimony comparable in import to that to which objection was made. General Gas Corp. v. Whitner, 110 Ga.App. 878(5), 140 S.E.2d 227; Rabun v. Wynn, 209 Ga. 80, 83, 70 S.E.2d 745; Chatham Amusement Co. v. Perry, 216 Ga. 445, 449, 117 S.E.2d 320.
3. Ground 6 of...
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...evidence to be expected elicited testimony comparable in import to that to which objection was made.Goodyear Tire & Rubber Co. v. Johnson, 120 Ga.App. 395, 397(2), 170 S.E.2d 869 (1969). The unifying link in these cumulative evidence cases is that the evidence admitted in error established ......
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