Wade v. Drinkard

• Docket Number: 31771.
• Decision Date: 01 November 1947
• Citation: 45 S.E.2d 231,76 Ga.App. 159
• Parties: WADE v. DRINKARD.
• Court: Georgia Court of Appeals

45 S.E.2d 231

76 Ga.App. 159

WADE v. DRINKARD.

No. 31771.

Court of Appeals of Georgia, Division No. 1.

November 1, 1947

Rehearing Denied Nov. 26, 1947.

Syllabus by the Court.

1. When the plaintiff amended and rewrote her petition to meet the ruling of the court on the defendant's motion to purge the petition of certain alleged objectionable matter she acquiesced in the ruling and is now estopped to question its correctness, and her assignment of error to such ruling will not now be considered.

2. Where certain paragraphs of a petition have been ordered stricken on a motion to purge and the petition ordered rewritten without the objectionable paragraphs, the court properly refused to allow an amendment to the petition which contained one of the paragraphs which had been ordered purged from the petition, since to allow the allegations of the original paragraph to remain in the pleadings where the jury could see it, though stricken, would nullify the order to purge

3. The evidence, though conflicting, is sufficient to support the verdict and the judge did not err in overruling the general grounds of the motion for a new trial.

4. The court did not err in refusing to permit the physician of the plaintiff to testify as to declarations made by the plaintiff to him many months after the accident with reference to her pain and suffering and as to the extent of her injuries, where he was permitted to testify as to the condition of the plaintiff and what he found at the time of the examination and the plaintiff testified in her own behalf with reference to her pain and suffering and as to the extent of her injuries.

5. The admission by the plaintiff, made at the scene of the accident a few minutes afterward, that he thought the accident was his fault and that he had some insurance and for someone to write down his name and address, and the writing made at that time, which was copied from an identification card taken by the defendant from his pocket book and handed to the witness, were not subject to the objection that they were hearsay, and the court erred in excluding the evidence when offered by the plaintiff on the trial of an action for damages for injuries alleged to have been sustained by the plaintiff in said accident.

(a) Admiss ons against interest are such even though they may contain a suggestion that the party making them carries insurance, and the mere fact, that insurance, or an insurance company, is mentioned as an inextricable part of the statement made by such party or conversation in which he indulged, does not make the evidence inadmissible when offered by the opposite party, as the party making such statement has only himself to blame in referring to insurance, or to the insurance company, in making the admission against his interest.

6. The court did not err in excluding testimony to the effect that the defendant, at the time of the accident in which the plaintiff was injured, was violating the law of this State in that he was operating his automobile without a proper driver's license, when there was no evidence to show a proximate causal connection between such violation and the injuries complained of.

7. Where the plaintiff was injured in a collision between the automobile operated by her husband and in which she was traveling as a guest and an automobile operated by the defendant, it was error for the court to charge the jury that if the plaintiff could have prevented her injury by the exercise of ordinary care she could not recover as there was no evidence to authorize a finding that the defendant had been in any way negligent.

8. The judge erred in overruling the defendant's motion for a new trial for the reasons set out in divisions 5 and 7 of this opinion.

Chas. S. Reid and C. E. Gregory, Jr., both of Atlanta, Paul T. Chance, of Augusta, Homer A. Legg, of Lincolnton, and Wm. F. Lozier, of Atlanta, for plaintiff in error.

Earl E. Norman, of Washington, for defendant in error.

SUTTON Chief Judge.

Clara M. Wade sued S.W. Drinkard, Sr., in the Superior Court of Lincoln County, seeking to recover damages by reason of injuries alleged to have been sustained as the result of specified acts of negligence of the defendant in the operation of his automobile, which collided with the automobile owned and operated by the plaintiff's husband while plaintiff was riding therein as a guest. The jury found in favor of the defendant, and the exception here is to the judgment overruling the plaintiff's amended motion for a new trial.

1. The plaintiff alleged in her original petition, in paragraphs 10, 11, and 12, that immediately after the accident the defendant admitted to certain named persons that he was operating his automobile while under the influence of whiskey; that he was solely to blame for the accident and his insurance company would pay plaintiff for her damage and injuries; and that defendant was arrested by the sheriff and charged with operating an automobile under the influence of whiskey and without a driver's license. The defendant filed a written motion to purge and delete these allegations from the petition on the ground that they were irrelevant, impertinent, highly prejudicial, and consisted of plaintiff pleading her evidence. The judge sustained the objections and entered an order directing the plaintiff to rewrite her petition so as to eliminate the objectionable matter by a specified date, or else that the petition would stand dismissed. To this judgment the plaintiff excepted pendente lite and assigned error thereon in her bill of exceptions. To prevent a dismissal of her case, the plaintiff complied with said order by rewriting her petition, eliminating the objectionable matter, and the case proceeded to trial on the rewritten petition.

The plaintiff contends that the court erred in requiring her to purge her petition of the alleged objectionable matter. When the plaintiff rewrote her petition to meet the ruling of the trial judge on the motion to purge, she acquiesced in the ruling and is now estopped to question its validity. Gregory v. Moore, 70 Ga.App. 671(1), 684, 29 S.E.2d 293. It was held in Hefner v. Fulton Bag and Cotton Mills, 37 Ga.App. 801(1), 142 S.E. 303, 304: 'When the plaintiff saw fit to meet the ruling of the court by offering an amendment, she waived her right to except to the ruling, and an exception upon the ground that she was forced to amend will not be considered.' Also, see Daniel v. Browder-Manget Co., 13 Ga.App. 392(4), 79 S.E. 237; Brantley Company v. Southerland, 1 Ga.App. 804, 57 S.E. 960; Farrer v. Edwards, 144 Ga. 553, 87 S.E. 777. The plaintiff in error's exception to the ruling requiring her to purge her petition will not now be considered.

2. One of the paragraphs which the defendant sought to have purged from the petition was paragraph 12. After the motion to purge had been filed, the plaintiff sought to amend her petition by striking this paragraph from the petition and substituting another in its place. In paragraph 1 of the amendment, she set out paragraph 12 as it appeared in the original petition and then set out the proposed amended paragraph to be used in lieu thereof. The court, in passing on the amendment, ruled, in part, 'to allow the allegations of paragraph 12 of plaintiff's petition to remain in the pleadings, though stricken, would nullify the order to purge. * * * that a part of the proposed paragraph 12 would be allowed. * * * if the plaintiff will redraft her amendment, eliminating all of the other objectional parts thereof.' To this ruling and judgment, the plaintiff excepted pendente lite and assigned error thereon in the bill of exceptions. The court did not err in disallowing the amendment in the form offered. The plaintiff could not acquiesce in the judgment requiring her to purge her petition of paragraph 12, and then place this paragraph back in the pleadings by an amendment, where the jury could see it. The court properly refused to allow the proposed amendment.

3. The evidence, while conflicting, is sufficient to support the verdict, and the judge did not err in overruling the general grounds of the motion for a new trial.

4. In special ground 1 of the motion, error was assigned on the ruling of the court excluding certain statements made by the plaintiff to her doctor with reference to her injuries and suffering, which statements were made some months after the accident. The doctor was allowed to testify as to the condition of the plaintiff and what he found at the time of his examination of her, but was not allowed to testify as to what the plaintiff told him with reference to her pain and suffering and the extent of her injury, on the ground that such testimony was hearsay. 'The declaration of the plaintiff, made to a physician, that he felt no sensation of pain resulting from sticking a needle into his finger, does not fall within any of the exceptions to the rule as to hearsay, and was properly excluded. * * * Especially was there no error in excluding the declarations of the plaintiff as to his physical symptoms and suffering, which were no part of the res gestae of the injury, when the plaintiff himself as a witness fully described the character and extent of his injuries.' Goodwyn v. Central of Georgia Railway Company, 2 Ga.App. 470(1), 58 S.E. 688. The plaintiff in the present case testified in her own behalf as to the extent of her injuries and suffering therefrom. 'The higher and better evidence is that of the person who has actual knowledge of the truth of the pains and other feelings to which the complaints relate.' Atlanta Street Railroad Company v. Walker, 93 Ga. 462, 467, 21 S.E. 48, 49. Also, see Alabama Great Southern Ry. Co. v McBryar, 65 Ga.App. 153, 158(7), 15 S.E.2d 563; Atlanta,...