Terminals v. Driver, 31659.

• Decision Date: 03 September 1947
• Docket Number: No. 31659.,31659.
• Citation: 44 S.E.2d 156
• Parties: UNITED MOTOR FREIGHT TERMINALS. v. DRIVER.
• Court: Georgia Court of Appeals

44 S.E.2d 156

UNITED MOTOR FREIGHT TERMINALS.

v.DRIVER.

No. 31659.

Court of Appeals of Georgia,

Division No. 1.

Sept. 3, 1947.

Syllabus by the Court.

1. A motion for continuance because of an absent witness is addressed to the sound legal discretion of the trial judge, and where it does not appear that the judge abused his discretion in passing on the motion, the refusal to continue the case was not error.

2, 3. The court did not err in admitting the evidence complained of in special grounds two and three of the amended motion.

4, 5. The charges excepted to in grounds four, five and six were not error for any reason assigned.

6. The court did not unduly stress the contentions of the plaintiff in the charge as a whole as alleged in ground seven.

7. The evidence supported the verdict and the court did not err in overruling the motion for new trial.

Error from Superior Court, Haralson County; Wm. W. Mundy, Judge.

Action by Duff C. Driver against United Motor Freight Terminals for personal injuries and property damage sustained in a collision between plaintiff's automobile and a truck belonging to defendant. To review a judgment overruling defendant's motion for a new trial after a verdict for plaintiff, defendant brings error.

Affirmed.

See also 74 Ga.App. 244, 39 S.E.2d 496.

Boykin & Boykin, of Carrollton, for plaintiff in error.

D. B. Howe and Claude V. Driver, both of Buchanan, for defendant in error.

PARKER, Judge.

Duff C. Driver obtained a verdict for damages against United Motor Freight Terminals in a suit for personal injuries and property damage sustained in a collision between his automobile and a truck of the defendant. A motion for a new trial was made by the defendant and was overruled, and it excepts to that judgment. Any ad ditional facts which should be stated will appear in this opinion.

1. The first amended ground of the motion for new trial complains because the court refused to continue the case on account of an absent witness. The defendant showed, in requesting a continuance, that the driver of its truck at the time of the collision was sick in a hospital in Tuscaloosa, Alabama, and was unable to come to court, that he had been subpoenaed, that he was the only representative of the company at the scene of the alleged collision, and that his testimony would be taken or his presence had at the next term of the court. It was shown also that counsel first knew of the inability of the witness to be present on January 17, six days before the trial on January 23; but the defendant did not show that the witness resided in the county where the case was pending, or that his testimony was material, and no statement was made as to what facts the defendant expected to prove by the absent witness three things ordinarily necessary in obtaining a continuance on the ground of an absent witness. Code, § 81-1410. Motions for continuances are addressed to the sound discretion of the trial judge, Pittman v. Dor-sey, Governor, 25 Ga.App. 596, 103 S.E. 854, and for a ruling on such motion to be reversible error it must appear that the court abused its discretion in not continuing the case. Poter v. Porter, 17 Ga.App. 456, 87 S.E. 707, Adams v. State, 50 Ga.App. 507. 179 S.E. 223, Rothleutner v. Bateman, 144 Ga. 103, 86 S.E. 215. Since the defendant made no showing whatever as to the facts expected to be proved by the absent witness, and did not otherwise fully comply with the statute, the trial court did not abuse its discretion in refusing the request for a continuance.

2. Special ground two of the amended motion alleges that the court erred in permitting the plaintiff to testify that he had quite a bit of trouble with his back, the objection being that there was no allegation in the petition of any injury to the plaintiff's back. The petition alleged that plaintiff's "whole body was sore and had numerous lacerations thereon;" and the court sustained the objection to the evidence thatplaintiff's back was still sore, but did not exclude the testimony that plaintiff had trouble with his back. In another part of his testimony, in describing the injuries sustained in the collision, the plaintiff testified without objection that "it hurt my back * * *." The general rule is that evidence of doubtful admissibility should be admitted and its weight and effect left to the jury. Albany Phosphate Co. v. Hugger Bros., 4 Ga.App. 771(6), 62 S.E. 533; McClelland v. State...