Malcolm v. Cotton, 47964

Decision Date03 April 1973
Docket NumberNo. 3,No. 47964,47964,3
Citation128 Ga.App. 699,197 S.E.2d 760
PartiesJohn E. MALCOLM v. Gloria P. COTTON
CourtGeorgia Court of Appeals

Ross & Finch, I. J. Parkerson, Malcolm P. Smith, Atlanta, for appellant.

W. P. Wilbanks, Jr., Duluth, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

The defendant appeals from a verdict and judgment for the plaintiff in her action for damages for her personal injuries sustained in an automobile collision resulting from the defendant's making a left turn into the pathway of the oncoming automobile in which the plaintiff was a passenger and which her husband was driving. Held:

1. The admission over objection of the testimony of a state trooper, qualified as an expert witness, that the use of automobile headlights was not required by light conditions at the time and place of the collision, on the scene of which he arrived some 45 minutes after the collision, even if error, was not reversible error, since other evidence to the same effect was admitted in the form of similar, unobjected to testimony from witnesses who were on the scene at or shortly after the time of the collision. Zeeman Mfg. Co. v. L. R. Sams Co., 123 Ga.App. 99(4), 179 S.E.2d 552.

2. The admission over objection of testimony by the plaintiff's husband as to the precise mechanical forces which caused the property damage to his vehicle and his statement that this information and explanation had been given to him by the 'adjusters,' was reversible error, since the proper foundation had not been made to qualify the witness to give such evidence, and the testimony he gave was hearsay which, insofar as it related to the existence of liability insurance, was irrelevant and prejudicial to any issue in this damage action. Black v. New Holland Bapt. Church, 122 Ga.App. 606, 609, 178 S.E.2d 571 and cit.

3. It was not error to admit over objection the testimony of the plaintiff's husband regarding the plaintiff's inability to perform her usual activities in the private business operated by the plaintiff and her husband. This evidence was not admitted for the purpose of recovering damages for lost wages or loss of profits, which were not claimed, but was properly admitted to show a decreased ability to labor, which is an element of pain and suffering. Railway Exp. Agency, Inc. v. Standridge, 68 Ga.App. 836, 837, 24 S.E.2d 504 and cit.

4. Although some of the plaintiff's husband's testimony as to his observation of the plaintiff's disfigurement as a result of the collision, was properly admitted, Abelman v. Ormond, 53 Ga.App. 753(1), 187 S.E. 393, those portions which constituted his opinions as to what her state of mind was (as emotional, depressed, etc.), were improperly admitted. Green, Georgia Law of Evidence, § 112, n. 132, p. 282, and cit.

5. The charge on future pain and suffering was not unauthorized merely because of the lack of medical testimony. The jury could infer from the plaintiff's testimony and the fact that approximately six years after the infliction of the lacerations the scars still remain, that her physical disfigurement would continue into the future. Manees v. Scicchitano, 122 Ga.App. 591(3), 178 S.E.2d 262 and cit.

6. It was error for the trial judge to fail and refuse to enter a pre-trial order pursuant to the provisions of Code Ann. § 81A-116 (Ga.L.1966, pp. 609, 628; 1967, pp. 226, 231; 1968, pp. 1104, 1106), which was mandatory upon the defendant's timely motion therefor. Smith v. Davis, 121...

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14 cases
  • International Ass'n of Bridge, Structural & Ornamental Ironworkers, Local 387 v. Moore
    • United States
    • Georgia Court of Appeals
    • May 8, 1979
    ...Smith v. Davis, 121 Ga.App. 704, 706, 175 S.E.2d 28; State Hwy. Dept. v. Peters, 121 Ga.App. 167, 173 S.E.2d 253; Malcolm v. Cotton, 128 Ga.App. 699, 701(6), 197 S.E.2d 760. However, we find no direct ruling on the motion or that such a ruling was ever requested, although a motion was filed......
  • Fortner v. Town of Register
    • United States
    • Georgia Court of Appeals
    • February 8, 2008
    ...17. (Punctuation and footnote omitted.) Dunn v. State, 277 Ga.App. 209, 210(2), 626 S.E.2d 174 (2006). See also Malcolm v. Cotton, 128 Ga.App. 699, 700(1), 197 S.E.2d 760 (1973). 18. See Pineda v. State, 287 Ga.App. 200, 202(2), 651 S.E.2d 148 (2007) ("[t]o secure reversal, an objector must......
  • Harley-Davidson Motor Co., Inc. v. Daniel
    • United States
    • Georgia Supreme Court
    • September 25, 1979
    ...in purpose and function to a preliminary ruling on evidence at a pre-trial conference. Code Ann. § 81A-116(5). See Malcolm v. Cotton, 128 Ga.App. 699, 197 S.E.2d 760 (1973). The order, like a pre-trial order, "controls the subsequent course of the action, unless modified at trial to prevent......
  • Sheet Metal Workers Intern. Ass'n v. Carter
    • United States
    • Georgia Court of Appeals
    • November 2, 1977
    ...must be followed by a pre-trial order. The mandatory language makes the failure to enter a pre-trial order error (Malcolm v. Cotton, 128 Ga.App. 699, 197 S.E.2d 760), and the only question remaining is whether the error was harmful. Smith v. Davis, 121 Ga.App. 704, 175 S.E.2d 28. The harmle......
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