BROWN v. BROWN
34900
Court of Appeals of Georgia
NOVEMBER 17, 1953
REHEARING DENIED DECEMBER 18, 1953
89 Ga. App. 428
In McMullan v. Kroger Co., 84 Ga. App. 195 (65 S. E. 2d 420), it was said: “The only reasonable inference from the allegations of the petition is that the structure on the defendant‘s premises was such as could have been seen by the plaintiff in the exercise of ordinary care, and that the alleged injury was the result of the failure on the part of the plaintiff to exercise such degree of care for his own safety.” On the question that the plaintiff ought to have seen the piece of concrete, see cases cited on page 198 of McMullan v. Kroger Co., supra.
The trial judge did not err in sustaining the general demurrer and in dismissing the petition.
Judgment affirmed on the direct bill of exceptions; cross-bill of exceptions dismissed. Townsend and Carlisle, JJ., concur.
Gambrell, Harlan, Barwick, Russell & Smith, Charles A. Moye, Jr., contra.
TOWNSEND, J. The order of January 28, 1953, which was entered by the court after heаring evidence of the defendant in support of his plea seeking a stay of proceedings under the provisions of the Soldiers’ and Sailors’ Civil Relief Act (
However, assuming that the first conditional ruling was not binding upon either the court or the parties when the matter was again brought up on June 1, 1953 (in which regard see Kinsella v. Kinsella, 353 Mo. 661, 183 S. W. 2d 905), it appears that the defendant, who was at the time a resident of DeKalb County, was present in court and testified when the case proceeded to trial on that date. So far as the record shows, he did not on that date make any showing that his defense was “mаterially affected by reason of his military service,” and no facts appear from which the finding of the court to the effect that his defense was not materially affected would appear an abuse of discretion. Accordingly, the order of June 1 overruling the plea of stay is without error. See Boone v. Lightner, 319 U. S. 561 (63 Sup. Ct. 1223, 87 L. ed. 1587); Gates v. Gates, 197 Ga. 11 (28 S. E. 2d 108).
Error is assigned in the first special ground of the amended motion for new trial on the charge of the court as follows: “The court charges you that as a matter of law that the plaintiff in this case, Mrs. Brown, is entitled to recover from the defendant, Mr. Brown, such payments, if any, she has proven to you by a preponderance of the evidence are due over the period from March—from April 1, 1950 to the present time, with interest thereon at 7%, less, gentlemen, or in consideration with the law that the court shall give you with respect to the defendant‘s plea of settlement for recoupment,” following which the court instructed the jury that, “while the court directs you that the
The direction of the verdict for back alimony payments in whatever amount the plaintiff had, by a preponderance of evidence, proved on the trial, was not error. A settlement agreement which by its terms provides for the payment of alimony, and which is incorporated in a decree of divorce rendered in a sister State, copies of which are duly authenticated and admitted in evidence, establishes the right of the plaintiff to recоver such amounts thereunder as she may prove are past due and unpaid. Richards v. Richards, 85 Ga. App. 605 (69 S. E. 2d 911). It having been admitted by all parties to the action that the amount recovered by the plaintiff here was the amount of alimony in arrears, the direction of the verdict was without error.
In his brief, counsel for the defendant further contends that the direction of the verdict was error because there was some evidence that the plaintiff had first breached the settlement agreement by failing to return to the defendant certain articles of personal property therein mentioned. This contention is also without merit, there being in evidence in this case authenticated copies of an action in the Justice Court of Oakland, Alameda County, Californiа, in which judgment was entered against the defendant on an identical cross-complaint involving this issue. Such judgment is conclusive between the parties until reversed or set aside.
Error is assigned in special ground 5 on the following: “The court further charges you, gеntlemen, that the truth of the charge or charges made may always be proved in justification of the libel or slander. . . . If you find that the statements made in the letter of October 10, 1950, are truthful statements you would not be authorized to find in favor of the defendant‘s counterclaim because the truth of the charges made may always be proved as justification of the libel or slander. If you should find
The only assignment of error on this portion of the charge is that it сonstituted an unauthorized and unnecessary repetition, and placed undue emphasis upon the defense to the cross-action. Mere repetition of a correct and applicable principle of law is not error unless it takes the color of an argumentative or opinionative utterance so as to tend to prejudice the minds of thе jury. Laney v. Barr, 61 Ga. App. 145 (9) (6 S. E. 2d 99); Patterson v. State, 207 Ga. 357 (2) (61 S. E. 2d 462). The charge here was full and fair, and, in view of its length, no harmful repetition appears therein. This ground is without merit.
Special ground 6 contends that the trial court erred, upon the trial of the case, in disallowing an amendment of the defendant to the effect that the plaintiff was, on March 19, 1948, granted a divorce against the defendant in Marin County, California, in which suit counsel for thе plaintiff and defendant stipulated that the plaintiff waived all claims of alimony, and that she has thereby waived all claims and demands for alimony against the defendant. Special ground 8 complains of the allowance of an amendment during the trial of the case, increasing the amount sued for from $1,250 as of the date of filing the petition to $4,750 as of the date of trial. Since the allowance or disallowance of amendments to pleadings cannot be considered as grounds of a motion for new trial (Manry v. First National Bank, 195 Ga. 163, 165 (2), 23 S. E. 2d 662, and cases there cited), these grounds are without merit.
Special grounds 7, 9, 13, 14, and 15 all assign error on the exclusion of evidence, to the effect that subsequently to the Nevada divorce proceedings (in which both parties made an appearance, so as to authorize a valid judgment in personam), and after the plaintiff had instituted a second divorce proceeding in California, in which, again, both parties were represented by counsel, the plaintiff‘s attorneys did, by correspondence and stipulation, waive “all claims and demands upon the defendant herein for alimony, support, attorney fees and court costs,” and other evi-
Special grounds 11 and 12 relate to the exclusion of testimony offered by the defendant in his cross-action, seeking damages for libel because of a letter written by the plaintiff to his employer, the United States Forestry Service, which аllegedly kept him from procuring a promotion. The testimony excluded would have been to the effect that it is customary for letters such as the one constituting the foundation of the cross-action to be processed through the personnel section and read by all persons having to do with promotions and transfers; that it becomes a permanent part of the subject‘s personnel record; that permanent records are always fully reviewed at any time promotions are under consideration; that the defendant is sure this letter directly resulted in his failure to obtain the promotion; and that it has caused him embarrassment in that he has been directly advised that it became quite general knowledge around the office. A part of this testimony was certainly objectionable in that neither a
Error is assigned in special ground 10 on the refusal of the court to permit the defendant to answer the following question over objection that it called for a conclusion: “Mr. Brown, do you owe Mrs. Brown any money whatsoever?” This ruling was proper, since the existence and amount of the debt was the ultimate fact to be ascertained by the jury under all the evidence in the case: The defendant testified that he discontinued payments because he did not think himself liable; that he did not think he owed the plaintiff any money and owed her no payments under any agreement to his knowledge. By such testimony he made clear both his contentions and the motives under which he acted; further than this he could not properly go.
The trial court did not err in denying the motion for new trial as amended.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
ON REHEARING.
Counsel for the movant on rehearing contend that this court, in holding that the movant offered no evidence and made no showing at the time that the trial court finally overruled the plea for stay under the Federal Soldiers’ and Sailors’ Civil Relief Act, overlooked the record of the testimony and the stipulation between the plaintiff and the defendant at the time of the trial on June 1, 1953, which was specified in paragraph 13 of the bill of exceptions, and is as follows: “The brief of evidence with order
This court assumed, in order to pass on the merits of this plea, that the order of the trial court on January 28, 1953, which was not appealed from, was not the law of the case to the effect that the plea was not well founded. While that order was favorable to the movant in allowing the stay, the same was conditioned upon his paying the agreed alimony pending further hearing, and this condition was not met. By the express provisions of the order, failure to meet its terms resulted in its denial. It was therefore an adverse order to the movant by reason of his failure to meet it. We will, however, continue to assume, without conceding, that the order of January 28, which was not complied with by the movant, does not constitute the law of the case. For the purpose of this decision, we will also assume, without conceding, that the record of the trial upon which this appeal is based also shows that the same conditions exist as existed at the time of the two previous hearings. With this in mind, we have re-examined Parker v. Parker, 207 Ga. 588 (63 S. E. 2d 366), which it is contended by the movant was overlooked by this court. In that case no facts were developed beyond the plea itself, which affirmatively showed that the movant was at the time actively engaged in military combat in Korea. As such, of course, he could not have been expected to be present at the trial or to contribute
On the other hand, in Gates v. Gates, 197 Ga. 11, it was held that where the applicant for a stay voluntarily offers evidence to show an impairment in his ability to defend the action, and this evidence, when subjected to legal tests, fails to show impairment, the trial judge is authorized to deny a stay. The Gates case was much stronger on its facts than the case here, in that there the defendant was assigned to active military duty at the time in North Carolina and was also apparently a nonresident of this State. For the obvious reasons set forth in our original opinion, the trial court did not abuse its discretion in overruling the plea of stay.
TOWNSEND, J.