Hodnett v. Hodnett

Court of Appeals of Georgia

Hodnett v. Hodnett

109 S.E.2d 285, 99 Ga. App. 565, 1959 Ga. App. LEXIS 904

CourtCourt of Appeals of Georgia

DecidedMay 18, 1959

Docket37620

StatusPublished

Cited by9 cases

This text of 109 S.E.2d 285 (Hodnett v. Hodnett) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hodnett v. Hodnett, 109 S.E.2d 285, 99 Ga. App. 565, 1959 Ga. App. LEXIS 904 (Ga. Ct. App. 1959).

Pincite

Opinions

Carlisle, Judge.

It appeared from the plaintiff’s own testimony that she and the defendant were formerly husband and wife; that the defendant had purchased the automobile in question in the name of a business firm of which he was a member, and that he had allowed the plaintiff the use of the automobile from the time it was purchased until some time after the parties were separated; that when the parties decided to [566]*566get a divorce, they went together to the office of an attorney who apparently represented the defendant in the divorce action and who represented the defendant in this case, and while there some discussion was had about the defendant buying the plaintiff an automobile as a part of the divorce settlement, and it seems that the defendant agreed to do this for the plaintiff but that this was never done. It further appears from the plaintiff’s evidence that in the discussion which she had with the defendant and his attorney at that time, it was tacitly recognized that the automobile here in question was in fact the property of the business firm and not that of the plaintiff. In cross-examining the plaintiff, counsel for the defendant, over the objection of the plaintiff’s attorney, was permitted to go into the matter of the agreement entered into between the plaintiff and the defendant on the occasion of the divorce, and the same subject matter was brought out by the attorney for the defendant in cross-examining the plaintiff’s witnesses, aod on direct examination of the defendant and of a witness for the defendant, all over the objection of counsel for the plaintiff, that such evidence had no- bearing whatsoever on the issues of the case. The special ground of the motion recites that, “Movant objected to the evidence as soon as and at the, time it was offered and then and there offered the court the following grounds of objections:” Then follows the statement by counsel for the plaintiff of his objection to the evidence after which the motion continues by reciting that the, court stated, “I will reserve my decision on this until I see whether it’s made material by the contract.” Though it is not definitely so stated in the. motion, a reasonable construction of the wording of the motion requires the conclusion, that, at some time after the above transpired, counsel for the plaintiff again renewed his motion to rule out any evidence insofar as any agreement or divorce was involved, again stating the substance of his objection, thereto, and the court again stated, “I will rule on that when and if he offers the contract in evidence. If he fails to introduce it, of course, I will rule it out.” This ground then alleges that the evidence was prejudicial and hurtful, damaged the defendant, and that its inadmissibility was beyond doubt, “and although subsequently ruled out out of the presence [567]*567of the jury, the jury was not instructed by the court, either in the court’s charge or elsewhere, not to consider said evidence.” The majority of the court does not construe this recitation of fact as constituting assignment of error on the last quoted statement of the trial court, but rather as an assignment of error on the failure and refusal of the court to rule out the evidence objected to after conditionally admitting it. We think this ground shows a sufficient insistence by counsel for the plaintiff on his objection to the evidence to have required the court to rule thereon without counsel having done anything further to invoke the ruling of the court. The ground shows that the court again had the matter called to its attention and ruled the evidence out “out of the presence of the jury,” and presumptively this was done before verdict, and at a time when the jury could have been recalled and instructed not to consider the evidence.

Whether or not this ground properly raised the question, it is sufficient to say here that the evidence objected to was not inadmissible for any reason urged. In the first place, the plaintiff had already in her own testimony brought out the, matter of the divorce between the parties and had testified as to a discussion had between her and the defendant and his attorney relative to the defendant providing the plaintiff with another automobile, and even though the evidence complained of in this ground may have been inadmissible as being irrelevant, nevertheless, under the circumstances of this case when this evidence is considered in its context, it was admissible in explanation and in elucidation'of testimony already introduced by the plaintiff herself. Evidence which may itself be irrelevant may nevertheless be so interwoven with relevant testimony as to require its admission in elucidation of the relevant testimony. Alexander v. State, 56 Ga. 478 (5); Georgia R. & Bkg. Co. v. Lybrend, 99 Ga. 421 (27 S. E. 794); Evans v. State, 185 Ga. 375, 376 (194 S. E. 873); Holcomb v. State, 5 Ga. App. 47 (7) (62 S. E. 647); Foster v. State, 72 Ga. App. 237, 239 (33 S. E. 2d 598). The evidence objected to in this ground comes within this well established rule of law. The special ground of the motion for a new trial does not show harmful error.

The plaintiff, based her.case solely on the contention that [568]*568the defendant gave the automobile in question to her. The defendant in his testimony denied this and introduced other evidence in support of this denial. The jury found in accordance with the defendant’s evidence, and the evidence authorized the verdict.

Judgment affirmed.

Gardner, P. J., concurs. Townsend, J., concurs specially.

Free access — add to your briefcase to read the full text and ask questions with AI

Carlisle, Judge.

It appeared from the plaintiff’s own testimony that she and the defendant were formerly husband and wife; that the defendant had purchased the automobile in question in the name of a business firm of which he was a member, and that he had allowed the plaintiff the use of the automobile from the time it was purchased until some time after the parties were separated; that when the parties decided to [566]*566get a divorce, they went together to the office of an attorney who apparently represented the defendant in the divorce action and who represented the defendant in this case, and while there some discussion was had about the defendant buying the plaintiff an automobile as a part of the divorce settlement, and it seems that the defendant agreed to do this for the plaintiff but that this was never done. It further appears from the plaintiff’s evidence that in the discussion which she had with the defendant and his attorney at that time, it was tacitly recognized that the automobile here in question was in fact the property of the business firm and not that of the plaintiff. In cross-examining the plaintiff, counsel for the defendant, over the objection of the plaintiff’s attorney, was permitted to go into the matter of the agreement entered into between the plaintiff and the defendant on the occasion of the divorce, and the same subject matter was brought out by the attorney for the defendant in cross-examining the plaintiff’s witnesses, aod on direct examination of the defendant and of a witness for the defendant, all over the objection of counsel for the plaintiff, that such evidence had no- bearing whatsoever on the issues of the case. The special ground of the motion recites that, “Movant objected to the evidence as soon as and at the, time it was offered and then and there offered the court the following grounds of objections:” Then follows the statement by counsel for the plaintiff of his objection to the evidence after which the motion continues by reciting that the, court stated, “I will reserve my decision on this until I see whether it’s made material by the contract.” Though it is not definitely so stated in the. motion, a reasonable construction of the wording of the motion requires the conclusion, that, at some time after the above transpired, counsel for the plaintiff again renewed his motion to rule out any evidence insofar as any agreement or divorce was involved, again stating the substance of his objection, thereto, and the court again stated, “I will rule on that when and if he offers the contract in evidence. If he fails to introduce it, of course, I will rule it out.” This ground then alleges that the evidence was prejudicial and hurtful, damaged the defendant, and that its inadmissibility was beyond doubt, “and although subsequently ruled out out of the presence [567]*567of the jury, the jury was not instructed by the court, either in the court’s charge or elsewhere, not to consider said evidence.” The majority of the court does not construe this recitation of fact as constituting assignment of error on the last quoted statement of the trial court, but rather as an assignment of error on the failure and refusal of the court to rule out the evidence objected to after conditionally admitting it. We think this ground shows a sufficient insistence by counsel for the plaintiff on his objection to the evidence to have required the court to rule thereon without counsel having done anything further to invoke the ruling of the court. The ground shows that the court again had the matter called to its attention and ruled the evidence out “out of the presence of the jury,” and presumptively this was done before verdict, and at a time when the jury could have been recalled and instructed not to consider the evidence.

Whether or not this ground properly raised the question, it is sufficient to say here that the evidence objected to was not inadmissible for any reason urged. In the first place, the plaintiff had already in her own testimony brought out the, matter of the divorce between the parties and had testified as to a discussion had between her and the defendant and his attorney relative to the defendant providing the plaintiff with another automobile, and even though the evidence complained of in this ground may have been inadmissible as being irrelevant, nevertheless, under the circumstances of this case when this evidence is considered in its context, it was admissible in explanation and in elucidation'of testimony already introduced by the plaintiff herself. Evidence which may itself be irrelevant may nevertheless be so interwoven with relevant testimony as to require its admission in elucidation of the relevant testimony. Alexander v. State, 56 Ga. 478 (5); Georgia R. & Bkg. Co. v. Lybrend, 99 Ga. 421 (27 S. E. 794); Evans v. State, 185 Ga. 375, 376 (194 S. E. 873); Holcomb v. State, 5 Ga. App. 47 (7) (62 S. E. 647); Foster v. State, 72 Ga. App. 237, 239 (33 S. E. 2d 598). The evidence objected to in this ground comes within this well established rule of law. The special ground of the motion for a new trial does not show harmful error.

The plaintiff, based her.case solely on the contention that [568]*568the defendant gave the automobile in question to her. The defendant in his testimony denied this and introduced other evidence in support of this denial. The jury found in accordance with the defendant’s evidence, and the evidence authorized the verdict.

Judgment affirmed.

Gardner, P. J., concurs. Townsend, J., concurs specially.

Cite This Page — Counsel Stack

Bluebook (online)

109 S.E.2d 285, 99 Ga. App. 565, 1959 Ga. App. LEXIS 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodnett-v-hodnett-gactapp-1959.

Opinions

Related

Cite This Page — Counsel Stack