Ludwig v. J. J. Newberry Co
| Citation | 52 S.E.2d 485 |
| Decision Date | 24 February 1949 |
| Docket Number | No. 32346.,32346. |
| Parties | LUDWIG . v. J. J. NEWBERRY CO. |
| Court | Georgia Court of Appeals |
Rehearing Denied March 29, 1949.
Syllabus by the Court.
1. (a) Giving the word "prejudicial" its broad meaning of tending to injure or impair and not any restricted meaning such as being blinded by bias, a party is entitled to cross examine a witness offered by the opposite party on any relevant or material matter, notwithstanding such cross examination may prove to be prejudicial to the party offering the witness. See Carusos v. Briarcliff, Inc., 76 Ga.App. 346 et seq., 45 S.E.2d 802.
(b) Where error is assigned based on the refusal of the trial court to give needful and proper instructions to the jury to endeavor to remove certain alleged improper impressions from their minds which they were likely to have acquired because of improper argument on the part of opposing counsel, the argument complained of must be set out in substance in the assignment of error. Where the improper conduct of counsel consists of reading facts from certain Appellate Court decisions, the decisions and the facts thus read must be set out in order that it maybe determined whether or not such conduct is prejudicial and hurtful.
(c) In civil cases it is discretionary with the trial court whether the losing party shall be permitted to poll the jury. Accordingly where the court has allowed the losing party to exercise this privilege, it is not error to refuse to permit certain of the jurors to be asked other questions.
2. Although evidence of collateral matters may throw some remote light on the main issues of the cases, it is nevertheless necessary that trial judges be vested with some latitude as to the admissibility of this type of evidence. Otherwise the whole course and progress of the trial could become converted to the determination of collateral issues rather than the main one.
3. The admission of evidence is not a proper ground for a new trial unless objection is made at the time it is offered and the grounds of objection stated. See Virginia Lumber Corporation v. Williamson Tie Co., 55 Ga.App. 410, 190 S.E. 202.
4. In close and doubtful cases where the evidence is in sharp conflict it is sometimes error to fail to charge all of Code, § 38-107, the same being the section of the Code on the determination of where the preponderance of the evidence lies, when a part thereof has been charged. See Mc-Cann Lumber Co. v. Hall, 77 Ga.App. 455 (7), 49 S.E.2d 150. In the instant case the court charged in substance all of said code section.
5. As a general rule where the jury finds for the defendant, the plaintiff cannot have been hurt by any error in the charge of the trial court as to the measure of damages. In order for an assignment of error to be sufficient for consideration the plaintiff in error must not only show error but also injury.
6-9. The assignments of error contained in the special grounds of the amended motion for a new trial treated under the corresponding divisions of this decision are without error for the reasons therein stated.
10. The jury is the final arbiter of fact. After the verdict the view of the evidence which is most favorable to upholding it must be taken, and where supported by evidence and approved by the trial judge, the same will not be set aside by this Court. See Agricultural Ins. Co. v. Crane, 76 Ga.App. 687, 47 S.E.2d 135; Bell Bros. v. Aiken, 1 Ga.App. 36(2), 57 S.E. 1001; Allen v. Allen, 71 Ga.App. 272, 274(1), 30 S.E.2d 665; Scribner's Sons v. Mutual Bldg. Co., 1 Ga.App. 527(1), 58 S.E. 240; Miller v. Central of Georgia R. Co., 16 Ga.App. 855, 87 S.E. 303.
Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.
Action by Mary Ludwig against the J., J. Newberry Co. for injuries sustained by plaintiff in a fall on steps in defendant's store buiding. To review an adverse judgment, the plaintiff brings error.
Judgment affirmed.
The plaintiff in error, Mrs. Mary Ludwig, hereinafter referred to as the plaintiff, brought an action against the defendant in error, J. J. Newberry Co., hereinafter referred to as the defendant, in which the plaintiff alleged that she visited the store building of the defendant for the purpose of making a purchase and that in walking down some steps located in said store building she slipped and fell; that her fall was due to the negligent manner in which the steps of the defendant were maintained; that the second step from the top had a foreign substance on the tread thereof, which was not apparent to the plaintiff as she proceeded to use the steps and that she slipped on this step and fell to the bottom of the steps, sustaining severe injuries alleged in detail in her petition.
By amendment she alleged in substance that she is suffering from other injuries not apparent at the time of filing her original petition which resulted from her fall in defendant's store; that it has become necessary for her to have an operation for the removal of her gall bladder which condition is the result of her fall; that the fall besides being due to the causes set out in the original petition was due to other acts of defendant alleged to be negligent in connection with the maintenance of thesteps, viz, slick, surface, uneven treads and risers, treads maintained at a sloping angle so that the front edge was lower than the back edge, no metal or other strips on the front of treads, that the second step, from which plaintiff fell, had no markings to define the outer edge of the steps, that the outer edge of the steps were curved downward, that the steps were dark in color as constructed, and darker as maintained by the defendant, tending to conceal the dangerous nature of the steps.
The defendant filed an answer in which it denies that it is indebted to the plaintiff in any sum whatever; denies that she was injured in the manner alleged; and denies it was negligent in any of the ways alleged.
On the trial of the case the jury returned a verdict in favor of the defendant, and judgment was accordingly entered. The plaintiff filed a motion for a new trial on the general grounds which was later amended by adding special grounds Numbers 4 to 21 inclusive. On the hearing the trial court overruled plaintiff's motion for a new trial as amended and this judgment is assigned as error.
G. Seals Aiken, of Atlanta, for plaintiff in error.
W. Colquitt Carter and Bryan, Carter & Ansley, all of Atlanta, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts.)
1(a). Special ground 4 of the amended motion for a new trial contends that the trial court erred in refusing to grant a mistrial on motion of counsel for the defendant based upon alleged improper and prejudicial cross examination of the plaintiff for the defendant, or upon overruling of said motion for a mistrial, thereupon failing by all needful and proper instructions to the jury, as requested by counsel for plaintiff, to remove the improper impression from their minds. It is contended that when the jury was selected to try the case each juror was asked for whom he worked and three of the jurors were employees of the Ga. Power Co.; that counsel for the defendant, knowing this to be true, cross examined plaintiff about a former claim she once had against the Ga. Power Co. in which she was injured, as to whether or not she had recovered from those injuries before the injuries inflicted at the time of her fall in the instant case, were received.
This cross examination was admissible and proper to determine what part of plaintiff's present injuries, if any, resulted from the old injury incurred in her claim against the Ga. Power Co, and what part, if any, resulted from her fall in defendant's store. Since the cross examination was pertinent to a material issue in the case, it cannot be rendered inadmissible and improper merely because it is prejudicial.
In Carusos v. Briarcliff, Inc., 76 Ga.App. 346, at page 354, 45 S.E.2d 802, 807, in dealing with a certain allegation on special demurrer on the ground that said allegation was irrelevant, immaterial and prejudicial, this Court said that "since the same is material and germane, even if its effect is prejudicial, the plaintiffs are entitled to plead it". The word prejudicial as used in Carusos v. Briarcliff, supra, and in the instant case is to be given its broad meaning of tending to injure or impair and it is not to be given any restricted meaning such as being blinded by bias. It follows that where evidence is pertinent and admissible it cannot be excluded merely because it tends to damage or impair the cause of the party against whom it is being introduced. Since a party is entitled to plead a material matter, the fact that proof of it would be prejudicial does not render the evidence inadmissible. In the instant case counsel for the plaintiff knew that three of the jurors were employees of the Ga. Power Co. at the time of their selection. He also knew his client once had a claim against the Ga. Power Co. At the time of the selection of the jury he had the opportunity to avoid the prejudicial effect of the cross examination.
(b) Error is also assigned in said 4th ground of the amended motion for a new trial based on the failure of the trial court to give needful and proper instructions to the jury to endeavor to remove certain improper impressions from theirminds which they were likely to have acquired because counsel for the defendant in arguing the case to the jury read from several Appellate Court decisions including one involving Rich's Inc., and in doing so read facts from said cases; also because counsel for the defendant referred to a former claim which the plaintiff herein had against the Ga. Power Co, there being three members of the jury who were employees of the Ga. Power Co. and one who was an employee of Rich's Inc. This part of special ground 4 of the amended motion for a new trial fails to point out what facts were read from the cases, or wherein...
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