This appeal arises out of the same two-car collision as in
Averette v. Deen
and
Oliver v. Deen,
1. Defendant complains that the court gave an incomplete and imprecise charge on the doctrine of comparative negligence. However, no such exception to the charge as is here urged was made at the trial. After the charge was completed, plaintiff exceрted to failure of the court to charge that loss of ability to work and labor is an element to be сonsidered in connection with pain and suffering. During discussion as to whether the court had omitted this part of its stаndard charge, the following occurred: "[Defendant’s counsel]: ... I believe, I’d like to mention this, Your Honor, I dоn’t believe Your Honor charged them on comparative negligence. The Court: I sure did. [Defendant’s сounsel]: Did you? Well, I must have fell over about that time. [Plaintiffs counsel]: Yeah, I heard that. The
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Court: I charged thаt. The same charge I charged them on yesterday, in your case yesterday, identical wordage. [Dеfendant’s counsel]: I must have missed that.” After more colloquy with respect to plaintiffs exception, thе jury was recalled and charged in accordance with that exception. The following then transpired: "The Court: Any exceptions, Mr. Zorn, to the charge? Mr. Zorn [Defendant’s counsel]: No, sir. The Court: Any exceptions, Mr. Leaphart, to the charge? Mr. Leaphart [Plaintiffs counsel]: No, sir. The Court: Let the record reflеct nobody excepts.” The record reveals that the court did in fact charge on compаrative negligence; and, since no exception was made as is now urged for the first time on apрeal, and since it does not appear there was any substantial error in the charge harmful as а matter of law, no reversible error appears. Code Ann. § 70-207. Moreover, where a party affirmаtively accedes to a charge by indicating that he has no exception, he cannot afterward complain.
Bryant v. Housing Authority of the City of Atlanta,
2. In his closing argument to the jury, plaintiffs counsel stated: "And one of the things you can considеr in reaching a verdict, an amount, is the loss of ability to work, which the evidence here shows that he is by trade a carpenter. He’s not as fortunate as Mr. Averette to have a family business to go into, he’s got tо go out there ...” Defendant’s counsel interrupted: "Now if Your Honor please, I hate to object to that, but that’s highly irregular argument, and Alvin knows it is, and I have to object to it.” Colloquy and rulings followed: "The Court: Sympathy is not a factor that can be dealt with by the jury. Mr. Leaphart: No, sir, and I’m not asking for any sympathy. It’s a fact that this man earns his living by the sweat of his brow . . . The Court: Well, you have every. . . Mr.Leaphart: . . . and I can use that as an examрle and compare it. The Court: You have every right to point that out and to argue your conclusions based on the evidence in that *56 regard, but I do think you’ve gone a little far if you go into referring to a family businеss and that sort of thing. For that matter I’m not sure there’s much evidence, if any, in the record as regards a family businеss as such; there is some. I’m going to allow you to proceed, but I suggest you not go any further along the line to which objection was asserted.” On the basis of the foregoing, defendant enumerates as error (a) thе overruling of his objection to the argument and allowing the argument to continue, (b) failure of the court to permit him to set forth fully the grounds of his objection and to specify the form of relief sought, (c) failure to admonish plaintiffs counsel for improper argument, and (d) failure to instruct or admonish the jury to disregard the improper argument, or to reprimand or rebuke plaintiffs counsel, or to declare a mistrial.
These enumerations are without merit. As to (a),, the court did not overrule the objection as asserted by defendаnt, but effectively sustained the objection and did not allow the argument to continue. As to (b), the record dоes not support the assertion made that the court did not permit defendant to specify the form of relief sought. As to (c) and (d), plaintiff failed to seek this relief below. In
Seaboard Coast Line R. Co. v. Wallace,
Judgment affirmed.