Stewart v. Wilson

• Decision Date: 28 June 1955
• Docket Number: No. 1,No. 35725,35725,1
• Citation: Stewart v. Wilson, 92 Ga.App. 514, 88 S.E.2d 752 (Ga. App. 1955)
• Parties: Tobbie STEWART v. Louise B. WILSON
• Court: Georgia Court of Appeals

Page 752

88 S.E.2d 752

92 Ga.App. 514

Tobbie STEWART v. Louise B. WILSON.

No. 35725.

Court of Appeals of Georgia, Division No. 1.

June 28, 1955.

Rehearing Denied July 15, 1955.

Syllabus by the Court.

1. Where one of the grounds of a motion for new trial is based upon newly discovered evidence and there is conflicting evidence as to the sufficiency of this ground the trial judge becomes the trier of the issue, and this court will not disturb his ruling unless his discretion is manifestly abused.

2. Where a husband or wife has testified, the other is not qualified to discredit such testimony by testifying to information received as a result of the marital relation.

3. Grounds of a motion for new trial complaining of the refusal of the court to allow a witness to answer certain questions of counsel must be complete and must of themselves disclose the expected answers and that the trial judge was informed of it.

4. Where there is any evidence, however slight, to suport a verdict this court will not disturb it.

5. The other special ground of the motion for new trial not being argued or expressly insisted upon will be treated as being abandoned.

Mrs. Louise B. Wilson brought an action in Jones Superior Court against Tobbie Stewart in which she alleged personal injuries, pain and suffering, and loss of wages and prayed for process and service and a verdict in the sum of $50,000. The action arose out of an automobile collision between an tutomobile being driven by the plaintiff and one being driven by the defendant. The defendant filed his answer and cross-action in which he sued for personal injuries, pain and suffering, loss of wages and the difference between the market value of his automobile before and after the alleged collision, and a verdict in the sum of $10,000. On the trial of the case the jury returned a verdict for the plaintiff in the sum of $5,000, which verdict was made the judgment of the court. The defendant filed a motion for new trial on the general grounds, which he later amended to include 4 special grounds. The trial judge overruled the motion for new trial as amended and the defendant excepted.

Martin, Snow & Grant, Macon, for plaintiff in error.

Popper & Morgan, Macon, for defendant in error.

NICHOLS, Judge.

1. The first special ground of the motion for new trial is based on newly discovered evidence. The defendant contends that since the trial of the case, and within the time when a motion for new trial may be made, an eyewitness to the collision has been discovered. The witness being the only eyewitness to the collision who is not an interested party to the case. An affidavit of the eyewitness as well as affidavits of his neighbors showing his good character were attached to the motion for new trial in addition to the affidavits of the counsel for the defendant and the defendant showing their diligence and that their failure to locate the witness before the trial of the case was not due to any lack of diligence. A counter-affidavit of the counsel for the plaintiff was also attached. All the affidavits attached to this ground show that the newly discovered witness lived within 100 feet of the place where the collision occurred. He stated in his affidavit that he saw the collision take place and after describing it stated that it was in no way the defendant's fault. The affidavit of C. Cloud Morgan, of counsel for the plaintiff, stated that he contacted the witness before the trial and that the witness told him that he had heard the crash, but did not see the collision, that he rushed out of his house after he heard the crash and was one of the first persons to arrive on the scene, if not the first.

In view of the conflicting evidence presented by the affidavits for the defendant and the counter-affidavit for the plaintiff the trial judge became the trier of the issue as to whether this special ground of the motion for new trial based upon newly discovered evidence was sufficient and should cause a new trial. This court and the Supreme Court have consistently held that, unless the discretion of the trial judge has been manifestly abused, a new trial on this ground will not be ordered. Staton v. State, 174 Ga. 719, 725, 163 S.E. 901; Central of Georgia Railroad Company v. Clark, 15 Ga.App. 16, 82 S.E. 600; Phillips v. State, 56 Ga.App. 463, 192 S.E. 840; and Brand v. City of Lawrenceville, 64 Ga.App. 357, 359 13 S.E.2d 214.

2. In the second special ground it is contended that the trial court erred in refusing to allow the jury to consider the answers of the plaintiff's husband to following questions asked him by the defendant's counsel on cross-examination. 'Have you ever had any trouble with your wife about her drinking? Not any at all? You never had any trouble about it? How long has she been taking a drink? How long have you all been married? Been taking one all during that time? When was the last time you or she took a drink?' The defendant contends that such questions were for the purpose of impeaching the testimony of the plaintiff, and would have tended to prove to the jury that the plaintiff was an habitual drinker. Where a husband or wife has testified, the other is not a qualified witness...