Steinmetz v. Chambley
| Decision Date | 08 July 1954 |
| Docket Number | No. 1,No. 35038,35038,1 |
| Parties | STEINMETZ et al. v. CHAMBLEY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The evidence authorized the verdict for the plaintiff and the amount thereof is not, as a matter of law, so excessive as to require a reversal of the case.
2. The defendants, without objection, permitted evidence of like nature to that of the plaintiff objected to, relating to the white center line in the road at the scene of the collision to be introduced, and thus waived any right they may have had to object to such evidence. The evidence was admissible as illustrating the character and condition of the road at the place of the collision, and was not inadmissible for any reason advanced.
3. Though a witness ordinarily is entitled, while on the stand, to refresh his memory from notes previously made by him, the trial court, under the facts of this case, did not err in requiring a witness for the defendant to answer questions while on cross-examination without referring to his notes.
4. No acts or statements harmful or prejudicial to the defendant are shown by the 7th ground of the motion for a new trial which complains of the refusal of the trial court to grant a mistrial because of the court's acts and statements in the presence of the jury in enforcing his previous ruling that a witness for the defendant should not refer to his notes while testifying on cross-examination.
5. Where testimony showing that the defendants were insured was voluntarily given by the defendants' witness who was defendants' agent assisting in the conduct of the case and its alter ego, on cross-examination in answer to a question which was not patently a deliberate attempt to elicit such information, the refusal of the trial court to grant a mistrial on that account was not error. Moreover, the defendant did not show that the mere allusion to an insurance company, without more was hurtful to it, or injected into the trial a new fact, it not being made to appear that the jury had not been interrogated as to whether they were stockholders, or kin of stockholders, of the insurance company at the time they were qualified, and consequently, as intelligent men, thus informed that the defendant was insured.
6. The court fully, completely, and amply instructed the jury with regard to cause and proximate cause and instructed them that negligence of the defendant, in order to be the basis of liability, must have proximately caused the plaintiff's damages.
(a) The failure to instruct the jury that negligence of the plaintiff's decedent, before it could be the basis for diminishing the plaintiff's damages or denying a recovery, must have proximately contributed to the decedent's injuries and death, was not harmful to the defendant.
7. The charge complained of in the 12th ground of the motion for a new trial was not erroneous for any of the reasons assigned.
8. In the absence of a timely written request, it was not error for the trial court to refuse to charge as complained of in the 11th ground of the amended motion.
9 & 10. Special grounds of the motion for a new trial complaining of portions of the charge to the jury which do not show that the portions complained of were harmful or prejudicial to the movant are without merit. For this reason the 12th and 13th grounds of the motion do not show error.
Nall, Sterne & Miller, Atlanta, for plaintiff in error.
R. C. Johnson, Zebulon, Hewlitt, Dennis, Bowden & Barton, Atlanta, for defendant in error.
Mrs. Claudie Ophelia Chambley brought suit in Fulton Superior Court against J. C. Steinmetz, C. B. Whitaker and J. A. Hudson, individually and as partners doing business as J. C. Steinmetz & Company, seeking to recover damages for the alleged wrongful death of her son.
The cause of action declared upon arose out of a collision between an automobile driven by the plaintiff's son and a mail bus operated by the defendants on State Highway 18 about one mile west of the town of Zebulon. The evidence showed that the road at the point of the collision curved sharply to the north from its westerly direction and traversed a bridge just to the northwest of the curve; that the defendants' bus was traveling east on the highway and the plaintiff's son was driving his automobile west, rounding the curve. The evidence was in conflict as to whether the bus was over the center line of the highway or not and as to the speed of the automobile driven by plaintiff's son, but there is no dispute that the automobile in rounding the curve began to skid prior to the collision and was skidding and turned at an angle at the point of collision and that the left rear fender of the automobile struck the left front of the bus. Plaintiff's son was killed as a result of this collision.
Upon the trial of the case a verdict for the plaintiff for $40,000 was returned. The defendants moved for a new trial on the general grounds and amended by adding ten special grounds, numbered 4 through 13. The trial court denied that motion and the exception here is to that ruling.
1. In ground four of the amended motion the defendants contend that the verdict was excessive. It was for $40,000, but there is nothing in the record that indicates that the jury did not give fair, unprejudiced consideration to the case and conscientiously assess such amount as in their opinion was fair compensation for the financial loss suffered by the plaintiff in the death of her son. The evidence as to the cause of his death was in conflict. If the jury had accepted the defendants' evidence as to what caused the collision it would have warranted a finding for the defendants, but if they believed that the collision was proximately caused by the defendants' negligence as contended by the plaintiff the verdict returned was warranted. The evidence also showed without dispute the expectancy of the plaintiff's son, who was 22 years old and that his earning capacity was $75 per week. It is the rule that verdicts in actions for damages are not ordinarily disturbed by the courts if they are predicated upon facts that support them both as to liability of the defendant and the amount of damages sustained by the plaintiff. Gainesville Coca-Cola Bottling Co. v. Stewart, 51 Ga.App. 102(1), 179 S.E. 734; Yellow Cab Co. v. Adams, 71 Ga.App. 404, 31 S.E.2d 195; Callaway v. Cox, 74 Ga.App. 555(2), 40 S.E.2d 578. This ground of the motion was properly overruled.
2. Ground 5 of the amended motion complains that despite the fact that the petition did not allege as an act of negligence that the defendants' bus driver passed an other vehicle at a point where the lines in the center of the pavement indicated that passing was prohibited, the court admitted evidence concerning the center line on the pavement over their timely objection that it was irrelevant.
The evidence objected to was the testimony of one of the defendants' witnesses adduced by the plaintiff on cross examination, as follows:
The objection was properly overruled by the court for the reasons: The defendants had themselves offered evidence concerning this very white line. Some of this evidence consisted of pictures at and near the scene of the collision between the defendants' bus and the automobile in which the plaintiff's son was riding. Other evidence concerning this center line was the testimony of John L. Kennon, as follows: 'Referring to my testimony at the Reed trial, I remember this question was asked me: 'What, if anything, did he tell you with regard to whether his car, the car in which he was riding skidded?' And I answered: 'He said they applied the brakes and skidded into the front of the bus.' And this next question was: 'What, if anything, did he say following that with regard to whether his car that he was riding in, ever got over the center line?' and I answered: 'Will you please repeat that question,' and the next question was: 'The question was, what, if anything, Mr. Looser said to you with regard to whether his car, the car he was riding in, ever got over the center line of the road,' and I answered: 'He said he didn't know if his car was over the line at the time of the collision.' However there was also other testimony of this witness on cross examination as to the center line that was unobjected to.
If one party to a case introduces inadmissible evidence, this does not license the other party to do the same. Stapleton v. Monroe, 111 Ga. 848, 36 S.E. 428. But, where evidence is objected to and thereafter the objecting party allows other evidence of the same nature to be introduced without objection, it is well settled that his objection is not good. Mutual Life Insurance Co. v. Burson, 50...
To continue reading
Request your trial
-
Lamb v. Redemptorist Fathers of Ga., Inc.
...377, 378. 'If the damage done by the mention of insurance can not be remedied a mistrial must be granted * * *.' Steinmetz v. Chambley, 90 Ga.App. 519, 528, 83 S.E.2d 318, 326. If counsel mention it in argument to the jury it is ground for mistrial. O'Neill Mfg. Co. v. Pruitt, 110 Ga. 577, ......
-
City of Macon v. Smith, 43310
...the court abused its discretion in denying the motion for mistrial, and Enumerations 4 and 5 are without merit. See Steinmetz v. Chambley, 90 Ga.App. 519(5), 83 S.E.2d 318; Sutherland v. Woodring, 103 Ga.App. 205, 214(3), 118 S.E.2d 846; Southern Poultry Co. v. Fletcher, 113 Ga.App. 374, 14......
-
Wallace v. Cates, 44447
...or its consequences avoided by proper cautionary instructions from the court, that a mistrial should be granted. Steinmetz v. Chambley, 90 Ga.App. 519(5), 83 S.E.2d 318. Accord Sims v. Martin, 33 Ga.App. 486, 126 S.E. 872; Heinz v. Backus, 34 Ga.App. 203, 128 S.E. 915; A. G. Boone Company e......
-
Roseberry v. Freeman
...nature and like import was admitted without objection. Parker v. Vrooman, 87 Ga.App. 287(2), 288, 73 S.E.2d 777; Steinmetz v. Chambley, 90 Ga.App. 519(5), 83 S.E.2d 318; Sechler v. State, 90 Ga.App. 700, 705, 83 S.E.2d 847. The answer to the first question propounded to the witness, quoted ......