Sims v. Martin

• Decision Date: 14 February 1925
• Docket Number: 15550.
• Parties: SIMS v. MARTIN.
• Court: Georgia Court of Appeals

126 S.E. 872

33 Ga.App. 486

SIMS v. MARTIN.

No. 15550.

Court of Appeals of Georgia, Second Division

February 14, 1925

Syllabus by the Court.

The realization by the owner of an automobile that he has insurance against liability for damage caused by its operation might cause him to feel secure against responsibility for such damage, and cause him to operate the automobile negligently and regardless of consequences. Where immediately after a collision by an automobile the owner, who was driving it, exclaimed, "It is my fault, all my fault, I was going too fast, we have got insurance, and will be glad to make settlement we think is right," the entire expression, including the reference to having insurance, if made as a part of the res gestæ of the transaction, as a spontaneous and uncalculated expression possesses probative value as tending to establish, by way of admission at the time of the collision, a negligent operation of the automobile as to speed.

In this case the declaration was made immediately after the collision and while the person, who had been knocked down in the street and injured as a result of the collision, was still lying in the street, and before the owner, who was driving, had got out of the automobile. The expression therefore was admissible as part of the res gestæ, and although the part of it with reference to insurance was expressly withdrawn by the court from the jury, it nevertheless, in fact, got to the jury, and, the jury being entitled to consider the complete declaration as tending to establish negligence on the part of the defendant, there could have been no error in refusing to declare a mistrial upon the ground that the jury had been prejudiced by the admission of such testimony.

This does not contravene the rule laid down by some courts that in a suit to recover for personal injuries caused from the collision of an automobile, any suggestion made in the presence of the jury at the instance of the plaintiff that the defendant is protected against responding in damages by liability insurance is highly prejudicial to the defendant and will require that a mistrial be declared. This latter rule is properly applied in cases in which such evidence has no probative value as respects any legitimate issue in the case, and possibly where its probative value is so small when compared to its prejudicial effect that fairness and justice demand its exclusion. It is hardly properly applied, where the defendant himself, as in the case under consideration injects it into the case, and makes it a part of the res gestæ, and invests it with a probative value beneficial to the plaintiff.

Where the petition in a personal injury suit to recover damages sustained by the plaintiff as the result of being knocked down by an automobile is predicated on various alleged acts of negligence by the defendant, and the plea of the defendant amounts only to a general denial of the allegations in the petition, and therefore there are no complicated issues which require minute elaboration for the enlightenment of the jury a charge by the court that the plaintiff's right to recover is dependent upon proof of the negligence set out in the petition, and that there can be no recovery by the plaintiff if his injuries were caused by his own negligence, sufficiently and fairly to the defendant states the contentions of the parties. This is true, although the defendant in his plea alleges that the injuries which the plaintiff may have received were due to the plaintiff's own carelessness and negligence, since such allegation is merely an affirmative statement to the effect that the plaintiff's alleged injuries were not caused by the alleged acts of negligence of the defendant. Any further charge in this respect desired by the defendant should have been specially requested.

Excerpts from the charge are not necessarily conflicting, where one of them fully states the law applicable to a certain situation and the other does so only partially and not fully. In such a case the rule that, where there are conflicting portions of a charge and one contains an erroneous statement of the law, and where it does not appear that the erroneous statement was expressly withdrawn from the jury, or that the jury was properly instructed as to the correct rule of law applicable, the charge is...