Rouse v. Fussell

• Decision Date: 21 June 1962
• Docket Number: No. 2,No. 39547,39547,2
• Citation: 106 Ga.App. 259,126 S.E.2d 830
• Parties: D. A. ROUSE v. Patrick FUSSELL, by next Friend
• Court: Georgia Court of Appeals

Page 830

126 S.E.2d 830

106 Ga.App. 259

D. A. ROUSE v. Patrick FUSSELL, by next Friend.

No. 39547.

Court of Appeals of Georgia, Division No. 2.

June 21, 1962.

Rehearing Denied July 5, 1962.

Syllabus by the Court

1. 'Where the court conditionally admits evidence, reserving a final ruling upon its competency until a later stage of the trial, it is the duty of counsel objecting to the admission of such evidence to invoke a subsequent ruling thereon, and upon his failure to do so the admission of such evidence is not error.' Mullis v. State, 197 Ga. 550(2), 30 S.E.2d 99.

2. Where evidence is admitted over objection and later other witnesses testify without objection to the same facts, a ground of an amended motion for new trial complaining of the admission of such evidence is without merit.

3. Records kept in the regular course of business are admissible in evidence although it is not shown who made the entries on such records.

4. Whether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court and such discretion, unless abused, will not be interfered with.

5. It is not error to admit into evidence a 'sketch' of the collision because it is not shown who drew it and whether it is drawn to scale.

6. A judgment overruling a motion for nonsuit cannot be considered where after verdict a motion for new trial is made on the usual general grounds.

(a) It is never error to refuse to direct a verdict.

7. The verdict was authorized by the evidence.

The plaintiff, a six year old child, by next friend sued the defendant to recover for injuries sustained when he was struck by a pickup truck operated by the defendant. The jury returned a verdict for the plaintiff and the defendant now assigns error on the judgments of the trial court overruling his motions for new trial and for judgment non obstante veredicto.

Sharpe & Sharpe, T. Malone Sharpe, T. Ross Sharpe, Lyons, for plaintiff in error.

J. H. Highsmith, Baxley, Gordon Knox, Hazlehurst, for defendant in error.

NICHOLS, Presiding Judge.

1. Special ground 1 of the amended motion for new trial assigns error on the admission of certain evidence, a hypothetical question, over objection. The ruling of the court was as follows: 'I think it is admissible. If the facts as he stated them don't appear in the record, I, of course, will rule the evidence out; now though subject to that, I am going to allow it.' No subsequent motion to rule out the evidence appears. 'Where the court conditionally admits evidence, reserving a final ruling upon its competency until a later stage of the trial, it is not to be expected that the court will bear the matter in mind and of his own motion exclude that which had been provisionally admitted; and it is the duty of counsel objecting to the admission of such testimony to remind the judge of the circumstances and to invoke a later and final ruling, if he so desires. In such circumstances as those referred to, the failure of the court to exclude testimony thus provisionally admitted is not error, unless a request to that effect be preferred by the party originally objecting to the admission of the evidence.' Bacon v. Bacon, 161 Ga. 978, 133 S.E. 512. See also Mullis v. State, supra, and citations. No error is shown by this ground of the amended motion for new trial.

2. Special ground 2 complains that the trial court erred in permitting the witness Thelma James to testify that children crossed the highway at the point where the plaintiff was struck. Other witnesses, including the defendant, testified without objection to the same facts and under such circumstances the ground of the amended motion for new trial is without merit. See Carmichael Tile Co. v. McClelland, 213 Ga. 656(3), 100 S.E.2d 902; and Healan v. Powell, 91 Ga.App. 787, 87 S.E.2d 332, and citations.

3. Special groudns 3 and 4 assign error on the admission of certain medical records and X-ray pictures. The objections made to such exhibits were that the witness did not make the X-ray pictures, and could not state that they were of the plaintiff, that it was not shown who made the entries on the medical records, if the witness made them and if the witness had sole and complete possession of the records. No objection was made to the contents of the records and the objections made did not raise the question as to whether the contents of the documents were of the category authorized to be introduced under the provisions of Code Ann. § 38-711. The witness who identified the records and X-ray pictures testified that they were made and kept in the regular course of the business and the admission of such evidence was in accordance with the provisions of Code Ann. § 38-711, supra. No error is shown by these grounds of the motion for new trial.

4. Special ground 5 assigns error on the admission of evidence by the Sheriff of Appling County as to the minimum speed that the defendant was driving at the time the defendant's truck struck the plaintiff.

The testimony in connection with such assignment of error was as follows: 'Q. Sheriff, you have experience in driving automobiles? A. Yes sir. Q. And, in your position, as Sheriff, have you investigated wrecks and causes of wrecks, and speed of vehicles? A. Yes sir. Q. Approximately how far was it from where it was indicated on the highway that the child was hit by the truck to where you found the blood where the child had been laying? A. 50 or 60 feet. Q. You say you did find skid marks? A. There was skid marks. Q. From your investigation of this collision that took place out there and from what you saw at that time, what, in your opinion, was the minimum speed that the motor vehicle was being driven at the time it struck the child--taking into consideration where the truck finally stopped, and the distance the child was knocked down the highway, what in your opinion, was the minimum speed at which this vehicle was driven at the time it struck the child?' At this point the following objection of the defendant was overruled and the witness permitted to answer the last question. 'I...