Trammell v. Atlanta Coach Co

• Citation: 51 Ga.App. 705,181 S.E. 315
• Decision Date: 05 August 1935
• Docket Number: No. 24377.,24377.
• Parties: TRAMMELL. v. ATLANTA COACH CO.
• Court: United States Court of Appeals (Georgia)

51 Ga.App. 705

181 S.E. 315

TRAMMELL.

v.ATLANTA COACH CO.

No. 24377.

Court of Appeals of Georgia,

Division No. 2.

Aug. 5, 1935.

Rehearing Denied Sept. 5, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Suit by Mrs. W. O. Trammell, Jr., against the Atlanta Coach Company. To review a judgment for plaintiff in an unsatisfactory amount, after her motion for a new trial was overruled, plaintiff brings error.

Affirmed.

G. Seals Aiken, of Atlanta, for plaintiff in error.

Bryan, Middlebrooks & Carter, and John A. Dunaway, all of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

1. Errors in a trial which could not have injuriously affected the resultagainst the excepting party are not good cause for reversal. Smith v. State, 3 Ga. App. 326 (1), 59 S. E. 934; Cohen Bros, v. Krumbein, 28 Ga. App. 788 (3), 113 S. E. 58; Dees v. State, 41 Ga. App. 321 (1), 152 S. E. 913. Accordingly, in an action for damages, growing out of injuries received in a collision between automobiles, where the question of comparative negligence was not made by the pleadings or otherwise, with the result that the judge did not charge thereon, but in effect charged the jury that, if the contentions of the plaintiff as to the negligence of the defendant were found to be true, they should find damages for the amount of the injuries shown to have been sustained, and where the jury found in favor of the plaintiff in the sum of $500, and the plaintiff excepts because of the smallness of the verdict, any alleged errors of law as set forth in 56 of the 93 grounds of exception, relative to the issues of liability of the defendant, are rendered harmless by the verdict, and such grounds will not be adjudicated by this court. Lewis Mfg. Co. v. Davis & Brandon, 147 Ga. 203 (4), 93 S. E. 206; Woodruff v. Bowers, 165 Ga. 408 (4), 140 S. E. 844; Parks v. Williams, 137 Ga. 578 (4-a), 73 S. E. 839; Atlantic & B. Ry. Co. v. Sumner, 134 Ga. 673 (4), 68 S. E. 593; Renwick v. La Grange Bank, 29 Ga. 200, 202; Hunt v. Western & A. Railroad, 49 Ga. App. 33, 36 (4), 174 S. E. 222; Tinsley v. State, 4 Ga. App. 611 (3), 613, 62 S. E. 93; O'Quinn v. Douglas, A. & G. Ry. Co., 7 Ga. App. 309 (1), 66 S. E. 810; Jackson v Georgia R. & Banking Co., 7 Ga. App. 644 (3), 67 S. E. 898; Tipton v. State, 8 Ga. App. 92 (1), 68 S. E. 614.

2. The amount of damages returned by the jury in such a verdict, for pain and suffering, sustained because of alleged negligence, being governed by no other standard than the enlightened conscience of impartial jurors, the question of the inadequacy of the verdict is not one which can be raised by the general grounds in a motion for new trial. See Bart v. Scheider, 39 Ga. App. 467 (1), 468, 147 S. E. 430; Gainesville Midland Ry. v. Jackson, 1 Ga. App. 632, 635, 57 S. E. 1007; Continental Aid Ass'n v. Hand, 22 Ga. App. 726, 727, 97 S. E. 206; Atkinson v. Taylor, 13 Ga. App. 100 (1), 78 S. E. 830; Williams v. Hines, 26 Ga. App. 381 (2), 107 S. E. 265; Anderson v. Kennickell, 17 Ga. App. 574 (1), 87 S. E. 835.

3. It is unnecessary to determine whether or not the private professional records of a physician, relating to his treatment of a patient prior to the accident forming the basis of a suit, can be introduced in evidence for the purpose of impeaching or illustrating his testimony, under the Code 1933, § 38-1803 or section 38-1707. Whatever public policy might be as to the propriety of admitting such confidential documents, it does not seem that section 38-418 of the Code 1933 could be taken to exempt such documents on the theory of confidential communications; and whatever would be the rule under section 38-1707 of the Code, providing that a witness may refresh his recollection by the use of any written memorandum, provided that he finally swears from his recollection as thus refreshed, as to whether or not such written memorandum itself would be admissible for "any purpose" whatever (Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194, 195 (3), 33 S. E. 961), and whatever might be the rule under section 38-1803 of the Code, providing that a witness may be impeached by "contradictory statements" previously made, as to whether a confidential private office record of a physician could be taken and treated as such a "contradictory statement" as would bring it within the rule of the last-mentioned Code section, in the instant case it appears that, irrespective of whether such records, and related oral testimony to which exception is taken, were improperly admitted for the purpose of impeaching or illustrating the physician's testimony, their admission must necessarily have been harmless, for the reason that they in nowise materially contradicted his testimony "as to matters relevant to his testimony and to the case, " but on the contrary his testimony was in substantial accord with all of the statements in such records material to the case.

4. Thirteen of the grounds in the motion for a new trial except to the reading by the court of the defendant's contentions, made in its answer as amended, which set up that the plaintiff's condition arose from complaints or disabilities existing prior to the collision. In reading these pleadings, as well as the plaintiff's pleadings, the judge expressly informed the jury that the pleadings of both the plaintiff and the defendant from which he read were not evidence, but constituted the contentions of the parties. The general ruleis that "a charge to the jury which is not authorized by the evidence and which is calculated to mislead and confuse the jury requires a new trial." Southern Marble Co. v. Pinyon, 144 Ga. 259 (2), 261, 86 S. E. 1086; Gaskins v. Gaskins, 145 Ga. 806 (1), 89 S. E. 1080; Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (2-a), 5, 76 S. E. 387, Ann. Cas. 1914A, 880. But this rule does not have application where, as here, the judge informs the jury that he is reading from the pleadings, and that they merely set forth the contentions of the parties, and are without evidential value. Matthews & Co. v. Seaboard Air Line Ry., 17 Ga. App. 664 (1), 87 S. E. 1097; Ward-law v. Wardlaw, 41 Ga. App. 538, 539 (2), 154 S. E. 159; White v. Knapp, 31 Ga. App. 344 (7 a), 346, 120 S. E. 796; Georgia Ry. & Power Co. v. Simms, 33 Ga. App. 535 (5), 126 S. E. 850; Napier v. Strong, 19 Ga. App. 401, 409 (4), 91 S. E. 579; Briesenick v. Dimond, 35 Ga. App. 668 (2), 134 S. E. 350; Puffer Mfg. Co. v. Nunn, 37 Ga. App. 358 (3), 140 S. E. 395.

5. "Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff's attorney is the offender." Code 1933, § 81-1009. In the instant case it was incidentally developed in the course of the testimony that this was not the first time that the case had been tried. It appears from the approved bill of exceptions, but not from the evidence, that there had been in fact two previous mistrials and one verdict for the plaintiff for $2,500, which was set aside by the trial court. The attorney for the defendant, in his argument to the jury, made the following statement: "The fact that [the plaintiff] has had to come down here and try this case so many times shows that it is not any account. If it had been any account, she would not have had to come down here and try it so many times." Whereupon counsel for the plaintiff moved for a mistrial, and in his motion urged as an especial reason therefor that the plaintiff could "not legally show or argue the result of the other trials of this case." Thereupon the court instructed the jury as follows "Gentlemen of the jury, you are not concerned in your consideration of this case with the number of times this case has been tried, and I rule out the argument of counsel about this. Mr. Middlebrooks, you may proceed with your argument." The court was correct in its instruction to the jury that they were not concerned with the number of times that the case had been previously tried, and in ruling out the argument of counsel. "Improper remarks of counsel are subject to correction either by proper instruction to the jury or a mistrial, according to the nature of the remarks and the circumstances under which they were made." Rawlins v. State, 124 Ga. 31, 51, 52 S. E. 1, 10. If counsel, without asking for a mistrial, seek to have the ill effect corrected by thus disabusing the minds of the jurors of any injurious impression received, he cannot by such procedure take his chances of obtaining a verdict in his favor, and if unsuccessful, thereafter complain that a mistrial had not been granted. O'Neill Mfg. Co. v. Pruitt, 110 Ga. 577, 578, 36 S. E. 59.

In this case the method adopted by counsel for the plaintiff was to move for a mistrial. Exception is taken to the fact that, while the court may have clearly enough instructed the jury in counsel's presence that they were not concerned in their consideration of the case with the number of previous trials, and while the argument of counsel was ruled out, the court did not directly and specifically rebuke counsel for the alleged prejudicial remarks about matters not in evidence, so as to bring the granting of a mistrial within his sound discretion. It is manifestly doubtful whether section 81-1009 of the Code 1933 undertakes to state the whole right and duty of the judge with reference to improper remarks of counsel, since the section appertains to remarks made solely as to "matters which are not in evidence, " and with reference to the granting of a mistrial, merely provides that "in his discretion, he may order a mistrial if the plaintiff's attorney is the offender." It would seem that the...