*1 514
Rehearing 12, denied December 1974 Martin, Harold E. for appellants. McGarity,
Edward E. Attorney, District for appellee. 49771. SHANNON v. KAYLOR et al. Judge. Webb,
Defendant Anna Shannon from the verdict appeals and judgment rendered in against her favor of plaintiff Kaylor Karl in a personal case out of injury arising three-car collision. Held: Enumeration error 1 "The complains that
court erred in overruling defendant’s motion for mistrial officer, after a police called behalf plaintiff, identified the defendant as 'the one cause giving probable accident,’ to the no instruction been having juiy to disregard such testimony.”
The record reveals that Officer Foster drew a diagram the accident scene vehicle in labeling the which plaintiff was riding as a as No. and the passenger other vehicles as No. He No. 3. testified that "From my report indicates that the drivers stated that No. vehicle had to let No. stopped merge into traffic at that time.” This did with correspond numbering system on the and the trial court diagram, interrupted: Let I "The court: me sure understand your Which is No. 2 and numbering. 3? The witness: For our accident we number the as we find report vehicles them, with the starting one to the giving probable cause Well, accident... The court: It just moment. doesn’t any make difference about that. But which vehicle have you marked No. and 3? witness: Your Honor, No. would be the ’66 Plymouth, which (defendant’s vehicle), car here the ’61 No. Oldsmobile and No. 3 would be ’65 Buick.” The officer the vehicle the label No. from then erased No. it as and renumbered riding vehicle No. 1. renumbered defendant’s after transcript, later Forty-nine pages had and another witness was testifying officer finished *2 moved for a midst defendant testimony, the of his Court, the mistrial, position "And the that we take stating could not give jury, the any instruction should colloquy mind.” the During from the jury’s eradicate that the had heard the jury the court doubt expressed remark, and the motion was "probable cause” sub- sequently overruled. made a
We have a situation where the witness thus "Well, remark; spontaneous saying the court interrupted, about that. just moment, any a it doesn’t make difference 3?”, 2 and But which vehicle have marked as No. you took the repetition of the court’s initial counsel question; relief, mistrial, no position and lesser suffice; yet the matter which contended to be so is serious did to immediate here not counsel make an prompt objection motion. to evidence not Objection or v. Bank Cheney promptly made constitutes a waiver. Bremen, (1) (102 Trammell v. 903); App. SE (Rule 20) (145 Shirley, In SE App. these circumstances trial court’s discretion overruling the motion not be overturned unless will remark to violate the fair flagrantly was so as prejudicial rights trial of the and we are not to so prepared hold. Enumeration of error No. is without merit. 2. At defendant submitted a written to "I when a request charge you follows: to a witness shall be contradicted as material successfully matter, credit as to other matters for the jury, his shall be but if a wilfully knowingly shall swear falsely, entirely, be disregarded his shall un- unless corroborated or other by circumstances to his tes- credit be impeached evidence. The character or bad timony where for impeached for the out of statements court shall contradictory request The jury supplied.) determine.” (Emphasis refused, error. and defendant enumerates this as of Code in the requested charge language is
38-1806; and while the would have been authorized falsely to find that swore plaintiff wilfully knowingly (see (3) (88 at the trial Sutton SE App. 744);Pelham Elliott, & Havana R. Co. v. (1) (75 1062)), there in the record to nothing is
show that impeached general bad character. "General not mean character” does testimony. character as truthfulness the witness’ Green, Pelham, Georgia Law of Evidence In p. supra, credibility "by witness was attacked to show that his character such that he is is [Code § worthy 38-1804],” of belief and the there ruling made with respect charging 38-1806 is not applicable here. correct,
"A request must even legal, apt, perfect, and precisely adjusted to some involved in the If incorrect, case. any portion of the is or request inapt denial of the If the request proper. request is directed to the whole of a Code section and a thereof is or portion inapt inapplicable, should be denied.” request Slaughter *3 (2b) (176 Linder, 450). the SE2d Since "bad character” the portion of 38-1806 was under inapt here, circumstances the court did not err in the refusing request charge to verbatim. Enumeration error No. 2 of is without merit.
3. Enumeration of error 3 that "The trial complains court erred a medical to permitting testify the accident would have the com- caused conditions plained of, when such to response was hypothetical question material containing assumptions of fact unsupported by any evidence and to be proven untrue.” The facts referred to in were this enumeration disputed trial, at evidence, matters and there was some if believed by Defendant, the jury, them. support however, asks us to believe her evidence to hold only and that these facts were untrue and disproved so as to render the expert medical opinion inadmissible. This we are [facts do, unauthorized to as "The question of whether the were] proven the by one for the trier of circumstances was (5 Saul, fact. Metropolitan 1, Ins. Co. v. 7-8 Life (9 214); State, SE2d Freeman v. SE2d 236).” Hutchens, Travelers Ins. Co. v. 106 Ga. App. 712). by SE2d "The truth of the facts assumed hypothetical question is a the determination question of the and it jury, upon must determine whether the basis hypothetical rests been es- question has tablished.” AmJur2d Evi- Expert Opinion dence, § 53. enumeration This is without merit.
4. Enumeration of error of the No. complaining expert’s as to opinion disability, raises the same issue as Enumeration and is likewise without merit.
5. The court instructed the on the issue of jury per se with negligence respect to defendant. Defendant excepted to this charge, the court should contending also have charged of se as it principle negligence per applied to other two drivers. This enumeration is without merit. There is that, no contention as to the charge but improper, additional instructions should have been with respect to the other drivers. "Under of repeated rulings court, correct otherwise instruction pertinent is not rendered erroneous the failure connection therewith some other correct and pertinent 171, 174 of law.” Hart v. SE2d $35,000 verdict so as to excessive bias, demonstrate prejudice and on the of the caprice part juiy. While defendant contended that many plaintiffs complaints as to pre-dated his health and did collision therefrom, not result was authorized to conclude otherwise.
Defendant also urges the verdict is far in excess optimistic most valuation placed the case plaintiff, since on the second he day of trial had noted that the defendant’s insurance limited coverage $10,000 and had offered to the case for compromise $7,500, which offer defendant rejected. There is no *4 authority that holding such defendant to a entitles new trial.
7. Remaining enumerations fail to show harmful (Code error of a trial. CPA requiring grant new 81A-161). §Ann. Pannell, J., Evans, Judgment P. concurs. affirmed.
J., specially. concurs 8, Argued Decided November October Rehearing December 2 and December denied McLendon, Carter, & H. Sanders Ansley, Smith Carter, Jr., appellant. for Groover, Jr.,
Parker, Groover, Ross, M. Pye & Lewis Durwood T. for Pye, appellees. concurring specially. Judge,
Evans, (discussed in of error number six As to enumeration the trial 5), judge Division it is that urged appellant if decided the they that charging erred Shannon, Georgia, violated the law of Miss se. Defendant negligence per this could constitute not made to because this objected charge promptly the drivers the other two automobiles involved. apply to meritorious, as blush, At objection appear first under Code 81-1104. being argumentative, McFail, true that defendant contended that It is seated, driver of the Oldsmobile car which plaintiff driver, automobile, Files, of a Buick committed defendant which caused the collision and that negligence fault; filed a third party was not at and she Shannon her two But she dismissed against parties. action these McFail, to answer party third action as and Files failed action, him, third was in default. party said Therefore, upon to the objection defendant’s judge should have made ground to these two third per apply party se negligence (one voluntarily of whom had appellant defendants default) dismissed, and the other was not well being taken, no merit in this enumeration. and there is Rehearing.
On for Motion on motion urged 2 of the it is opinion, As to Division R. Co. in Pelham & Havana the record rehearing 1062) Elliott, there shows the plaintiff was no impeach 38-1804; Code character as provided for *5 which the was there be by sought means impeached by prior the introduction of his statements of pre-existing which contradicted denial at trial his. back; therefore holds difficulty with his and that Pelham general be of may by proof prior character shown statements and is from contradictory indistinguishable case, reversal for failure to present requiring Code 38-1806 verbatim.
If may Pelham holds that bad character be general by statements, shown of proof contradictory prior cannot be followed. Code quite explicitly 38-1804 sets forth method by general may bad character be "A be shown: witness evidence as to his may impeached by general bad character. The witness should be impeaching first asked of his character of knowledge general witness, is, and next as to what that character if, he be lastly may character, asked from that he would believe may on his oath. The be by him witness sustained transactions, similar of proof character. The or particular the opinions individuals, of single inquired shall not be of side, on either except upon cross examination in seeking for the extent and foundation of the witness’ knowledge.”
Hence this section deals with the general reputation (Green, Georgia Evidence, Law of pp. 133, 138) §§ and cannot be equated with impeachment by prior statements, contradictory which is provided by Code [§ 38-1803.1 "The by the Code specification 38-1804] of the nature of the to be asked questions impliedly excludes all other questions. Thus the inquiry is to concern general character, not character as to [Gordon Gilmore, (7) truthfulness SE 1007)], Jones, veracity [Calfee
307)] Green, . . at 344 supra We (Emphasis supplied.) expressly reject the contention made here that evidence prior as to contradictory statements offered to prove that the witness was swearing falsely at "inevitably creates issue” as to bad character. The two are by contradictory 1"A witness may impeached made him previously by statements as to matters relevant to his and to the testimony case.” provided impeachment methods different
entirely Code sections. separate by
"The court charged may impeached that a witness him, by disproving by previous facts testified matters, him contradictory statements made rel- evant to his and to the It is contended case. that the court also should have instructed the that a *6 witness was as to his bad character. impeachable There was no impeach any by proof character, general bad and the court no properly gave instruction as to mode Devereaux v. of impeachment.” (5)
To the extent conflict with these may Pelham well-established it will followed. principles, not be adhered to.
Judgment 49792. et al. GORDON GORDON Judge. Webb, said,
It has been "The of justice grind wheels slow.” The exceeding automobile collision which constitutes judice basis of the case sub occurred 29, 1965, Chatham County December com plaint was filed Summary December 1967. judg ment certain in De dismissing defendants was entered cember, mistrial, there was a Subsequently granted court the motion of one of the defendants mistrial, judgment later sustained a notwithstanding motion for dismissal of the other the case came to this court in March of this court reversed (Gordon 23, 1972 Carter, court on May 570)), SE2d the case was tried with a verdict again and judgment 23, 1972, for the defendants entered August and appeal has been made to this court. The again 22, 1974, enumeration of errors filed August here having years taken two for the transcript and record to be finished and submitted. Now the case is here for the time, second occurred involving alleged tort nearly years nine ago. facts of the case are as set forth