Southeastern Greyhound Lines v. Hancock

• Decision Date: 14 July 1944
• Docket Number: 30564.
• Citation: 31 S.E.2d 59,71 Ga.App. 471
• Parties: SOUTHEASTERN GREYHOUND LINES, Inc., et al. v. HANCOCK.
• Court: Georgia Court of Appeals

31 S.E.2d 59

71 Ga.App. 471

SOUTHEASTERN GREYHOUND LINES, Inc., et al. v. HANCOCK.

No. 30564.

Court of Appeals of Georgia, Division No. 2.

July 14, 1944

Rehearing Denied July 25, 1944.

Syllabus bye the Court.

Lester F. Watson, of Dublin, for plaintiffs in error.

C C. Crockett, of Dublin, for defendant in error.

PARKER Judge.

This is an action by Burton Hancock, a minor, suing by next friend against Southeastern Greyhound Lines, Inc. and Frank Tarpley, for damages, general and aggravated, for physical pain and wounded feelings alleged to have been inflicted upon the plaintiff by the defendants in the making of an unwarranted and unjustified physical assault upon him. The defendants demurred generally and specially to the petition. The demurrers were overruled, and to this ruling exceptions pendente lite were duly presented, allowed, and filed. The trial resulted in a verdict in favor of the plaintiff. The defendants' motion for a new trial was overruled and they excepted.

1. There is no clear, direct, or specific assignment of error in the final bill of exceptions on the exceptions pendente lite in this case, or upon the rulings therein excepted to, as required by the Code, § 6-1305, and this court is without jurisdiction to consider the exceptions. "The assignment of error in the final bill of exceptions upon exceptions pendente lite must be a specific assignment of error. Either the exceptions pendente lite, or the ruling therein complained of, must be directly, clearly and specifically assigned as error." Cochran v. State, 59 Ga.App. 892(2), 2 S.E.2d 730, 731. "The bill of exceptions must itself contain an assignment of error either directly upon the ruling or upon the exceptions pendente lite." Lanier v. Council, 179 Ga. 568(1), 176 S.E. 614.

2. The first special ground of the motion for new trial complains of the admission, over timely objection of testimony by the plaintiff as to a statement made by the porter for the Greyhound bus company. Conceding but not deciding that the testimony objected to was inadmissible and should have been excluded, the error was cured when counsel for the defendants brought out the same evidence again on cross examination of the witness. "Whether the court erred in allowing a witness to testify to certain facts over objection is immaterial, where later the same witness testified to the same facts without objection." Simmons v. State, 34 Ga.App. 163, 128 S.E. 690. "Error in the admission of certain evidence ordinarily is cured by the introduction without objection of other testimony to the same effect." Bullard v. Metropolitan Life Ins. Co., 31 Ga.App. 641(6), 122 S.E. 75, 76.

3. The second special ground alleges that the court erred in expressing or intimating his opinion on the facts of the case, as prohibited by the Code, § 81-1104, in stating that the jury should draw the conclusions as to what the emergency required of the parties. The use of the word "emergency" is criticised as an intimation by the court that there was an emergency when in fact no emergency had been shown. The word was used by the court in ruling upon an objection made by counsel for the defendants to certain testimony of the plaintiff. We do not think the expression used amounted to the intimation of an opinion by the court, and we hold that this ground is without merit. See Fowler v. State, 187 Ga. 406(6), 1 S.E.2d 18.

4. The third special ground charges error because of the overruling of the defendants' motion for a mistrial. The plaintiff's father testified that "every time my children *** go down there [referring to the bus station] to have their baggage checked they would have trouble with Mr Tarpley." The court ruled out the evidence, and overruled the motion for a mistrial. The...