Laney v. Barr

• Decision Date: 28 November 1939
• Docket Number: 27534.
• Citation: 6 S.E.2d 99,61 Ga.App. 145
• Parties: LANEY v. BARR et al.
• Court: Georgia Court of Appeals

6 S.E.2d 99

61 Ga.App. 145

LANEY v. BARR et al.

No. 27534.

Court of Appeals of Georgia, Division No. 1.

November 28, 1939

J J. Reese and A. B. Taylor, both of Carrollton, for plaintiff in error.

Boykin & Boykin, of Carrollton, for defendants in error.

MacINTYRE J.

1. An objection was made to certain testimony on the ground that it was "irrelevant and immaterial." No more specific objection was stated at the time the evidence was offered. Such objection is too general. The attention of the court must be called to the specific ground of objection at the time the evidence is offered; and unless this is done, no question is raised for decision by this court. Legg v Legg, 165 Ga. 314, 140 S.E. 868; Whitman v State, 39 Ga.App. 547, 548, 147 S.E. 798; Whitener v. State, 39 Ga.App. 676, 677, 148 S.E. 305; Scott v. State, 46 Ga.App. 213, 216, 167 S.E. 210; Walker v. Lastinger, 141 Ga. 435, 81 S.E. 203.

2. The objection that the following material evidence offered by movant was illegally withheld by the court from the jury is without merit: "W. K. Wilson, on behalf of the plaintiff, or movant, testified: 'He said he couldn't tell about his condition at that time. I asked him and he said he couldn't tell; that it would take 30 to 40 minutes. He said it was a bad shock.' Counsel for defendants objected to this evidence as follows: 'We object to what the doctor said, and move to rule that out."' From this objection, as it appears in the special ground of the motion, we can not say that the evidence is not hearsay and inadmissible. "A ground of a motion for a new trial assigning error upon the admission of evidence will not be considered, unless it sets forth the evidence objected to in such manner that the question of its admissibility may be decided by this court without reference to the other parts of the record." Thompson &amp Company v. American Mortgage Company, 107 Ga. 832(2), 33 S.E. 689.

3. In special ground 3, the plaintiff in error asked his own witness the following question: "What was his appearance ever since the accident as you have seen him?" The judge ruled: "The witness not being a physician, I rule that out." The plaintiff contended that his appearance since the injury was admissible as he had set out in his petition permanent injuries and this appearance would certainly show his condition at that time, and it did not take a physician to see changes that had been made in him. Where the answer expected was that his health was bad, the question was too general and did not give sufficient facts upon which to rest or base an opinion by a nonexpert witness as to the health of the plaintiff. Southern Life Insurance Company v. Wilkinson, 53 Ga. 535, 536; Herndon v. State, 111 Ga. 178, 180, 36 S.E. 634.

4. A ground which does not recite what evidence plaintiff was objecting to is too incomplete to present anything for the consideration of this court. "Contentions" in a ground of a motion for new trial are not "objections" to the evidence. DeVere v. State, 45 Ga.App. 330, 336, 164 S.E. 485.

5. An objection that the following evidence offered by movant was illegally withheld by the court from the jury is not meritorious. Witness McKinley Langley, sworn for plaintiff, was asked: "I want to ask the witness where the wire was with reference to the bale of cotton at the time he saw it, where the wire was with reference to the height from the ground, and as to the bale of cotton, whether it struck near the top or bottom of the bale of cotton. I expect the witness to answer and testify that the wire was just at the lower corner on the right hand side of this bale of cotton." The court then stated: "That has been gone over repeatedly." We can not tell from this ground whether the court had definitely ruled on the objection or was merely making an observation in which he was endeavoring to impliedly express the wish that counsel would not unnecessarily go over the same ground by repeatedly asking questions which were bringing out no new facts.

6. The following evidence was introduced when plaintiff's counsel asked witness Dr. T. P. Goodwyn: "Why didn't you place it back when he did come to you?" Answer. "It would have necessitated an operation." Objection by defendant. "This happened two years later and we object to it as irrelevant." Movant contends this evidence was illegally withheld from the jury by the court. This ground does not raise any question for decision by this court since it is impossible, without searching in the brief of evidence for the context which would render the fragmentary extract from the evidence intelligible to discover whether the evidence repelled was material or not. Smith v. State, 126 Ga. 803(2), 55 S.E. 1024; Thompson v. State, 118 Ga. 330, 45 S.E. 410.

7. To a certain question asked by the defendant's counsel, plaintiff interposed the following objection: "We object to that if your Honor please." This objection is too general to raise a question to be decided by this court. See the authorities cited in division one of this opinion.

8. Special grounds 8, 9, 10 are without merit. The defendant's counsel was laying the foundation for the purpose of impeaching a witness of the plaintiff by calling plaintiff's witness's attention to the time, place person, and circumstances attending the former statement, and then asking him if he had not, at that time and place, made statements contrary to what he was now swearing. The objection that the statements asked about were made, not in the presence of the plaintiff and therefore...