Holland v. Watson
| Decision Date | 08 October 1968 |
| Docket Number | No. 43885,No. 3,43885,3 |
| Citation | 164 S.E.2d 343,118 Ga.App. 468 |
| Parties | Mirtie HOLLAND v. Juanita S. WATSON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) An answer of a witness elicited on cross examination and which was in fact responsive to the question asked is not ground for a mistrial because it injects the issue of insurance into the case, although the trial court should have given cautionary instructions to the jury to disregard the remark.
(b) Where it was made to appear to the court that the defendant carried no insurance and that plaintiff's insurer, by reason of an uninsured motorist provision in the plaintiff's policy of liability insurance, had an interest in the outcome of the case, it was error to deny the plaintiff's motion to allow the jury to be qualified to determine whether they were employees, officers or stockholders in the insuring corporation.
2. The trial court correctly charged the law of comparative negligence, there being a fact dispute as to whether or not the plaintiff signaled her intention to stop and make a left turn, where she did in fact stop to allow traffic to clear before making the turn and the defendant struck the car from the rear.
3. Enumerations of error requiring reference to the record must be paginated, or references to pertinent portions be furnished in the brief of counsel.
This is a rear end collision case. The defendant struck the plaintiff's car while it was waiting to make a left turn at an intersection. The plaintiff appeals from a verdict in her favor for less than the amount sued for on the ground that certain errors in the trial of the case prevented her from receiving the compensation to which she was entitled.
Gilbert & Head, Aubrey W. Gilbert, Carrollton, for appellant.
Tisinger & Tisinger, David H. Tisinger, Carrollton, for appellee.
1. Two questions involving the issue of insurance are raised in this case. First, the plaintiff's attorney requested that prospective jurors be qualified as to their relationship or employment with United States Fidelity & Guaranty Insurance Company, stating to the judge outside the presence of the jury that the defendant had no liability insurance, but the plaintiff's policy contained a provision as to uninsured motorists which would obligate them to pay any judgment against the defendant to the amount of $10,000. The defendant's attorney in resisting the motion did not deny these statements and, while admitting that it might be indirectly interested, stated in his place that he had not been employed by the insurer nor interviewed by it prior to filing defensive pleadings. He further pointed out that if United States Fidelity & Guaranty Insurance Company did pay the judgment it would still be subrogated to the plaintiff's right to recover the amount from the defendant. The court refused to qualify the jury on this subject. Thereafter, on the trial of the case, plaintiff's counsel, cross examining the defendant, asked: Plaintiff's counsel then moved for a mistrial and the court, without giving the jury any cautionary instructions overruled the motion.
(a) As to the second objection, the fact that a witness unwittingly volunteers a statement regarding insurance is not under all circumstances ground for a mistrial. In Steinmetz v. Chambley, 90 Ga.App. 519(5), 83 S.E.2d 318, an answer to a question asked on cross examination 'not patently a deliberate attempt to elicit such information' was held not ground for a mistrial, especially in view of the fact that the jury had not been interrogated as to their relationship with any insurance company. In Edwards v. Adams, 117 Ga.App. 508(3), 160 S.E.2d 841, the motion for mistrial was held properly overruled where the trial court gave cautionary instructions. While the court here should have, but did not, caution the jury to disregard any mention of insurance, it does appear that the witness not only made no effort to inject the issue into the case, but that she only stated the fact after plaintiff's counsel had asked her three times what she said immediately after the collision, and it is fairly obvious that the witness felt the attorney was seeking to elicit the entire conversation of which this was a part.
(b) While mistrials have been granted because of remarks of witnesses...
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