Laney v. Barr

6 S.E.2d 99, 61 Ga. App. 145, 1939 Ga. App. LEXIS 237
CourtCourt of Appeals of Georgia
DecidedNovember 28, 1939
Docket27534.
StatusPublished
Cited by20 cases

This text of 6 S.E.2d 99 (Laney v. Barr) 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
Laney v. Barr, 6 S.E.2d 99, 61 Ga. App. 145, 1939 Ga. App. LEXIS 237 (Ga. Ct. App. 1939).

Opinion

MacIntyre, J.

1. An objection was made to certain testimony on the ground that it was “irrelevant and immaterial.” No more specific objection was stated at the time the evidence was offered. Such objection is too general. The attention of the court must be called to the specific ground of objection at the time the evidence is offered; and unless this is done no question is raised for decision by this court. Legg v. Legg, 165 Ga. 314 (140 S. E. 868); Whitman v. State, 39 Ga. App. 547, 548 (147 S. E. 798); Whitener v. State, 39 Ga. App. 676, 677 (148 S. E. 305); Scott v. State, 46 Ga. App. 213, 216 (167 S. E. 210); Walker v. Lastinger, 141 Ga. 435 (81 S. E. 203).

2. The objection that the following material evidence offered by movant was illegally withheld by the court from the jury is without merit: “W. K. Wilson, on behalf of the plaintiff, or movant, testified: ‘He said he couldn’t tell about his condition at that time. I asked him and he said he couldn’t tell; that it would take thirty to forty minutes. He said it was a bad shock.’ Counsel for defendants objected to this evidence as follows: ‘We object to what the doctor said, and move to rule that out.’” From this objection, as it appears in the special ground of the motion, we can. not say that the evidence is not hearsay and inadmissible. “A ground of a motion for a new trial assigning error upon the admission of evidence will not be considered, unless it sets forth the evidence objected to in such manner that the question of its 'admissibility may be decided by this court without reference to the other parts of the record.” Thompson & Company v. American Mortgage Company, 107 Ga. 832 (2) (33 S. E. 689).

3. In special ground 3, the plaintiff in error asked his own witness the following question: “What was his appearance ever since the accident as you have seen him ?” The judge ruled: “The witness not being a physician, I rule that out.” The plaintiff con *146 tended that his appearance since the injury was admissible as he had set out in his petition permanent injuries, and his appearance would certainly show his condition at that time, and it did not take a physician to see changes that had been made in him. Where the answer expected was that his health was bad, the question was too general and did not give sufficient facts upon which to rest or base an opinion by a nonexpert witness as to the health of the plaintiff. Southern Life Ins. Co. v. Wilkinson, 53 Ga. 536; Herndon v. S tate, 111 Ga. 178, 180 (36 S. E. 634).

4. A ground which does not recite what evidence plaintiff was objecting to is too incomplete to present anything for the consideration of this court. “ Contentions” in a ground of a motion for new trial are not “objections” to the evidence. DeVere v. State, 45 Ga. App. 330, 336 (164 S. E. 485).

5. An objection that the following evidence offered by movant rvas illegally withheld by the court from the jury is not meritorious: Witness McKinley Langley, sworn for plaintiff, was asked:' “I Avant to ask the witness Avhere the wire was with reference to the bale of cotton at the time he saAV it, where the wire was with reference to the height from the ground, and as to the bale of cotton, whether it struck near the top or bottom of the bale of cotton. I expect the Avitness to answer and testify that the wire Avas just at the lower corner on the right-hand side of this bale of cotton.” The court then stated: “That has been gone over repeatedly.” We can not tell from this ground whether the court had definitely ruled on the objection or was merely making an observation in which he was endeavoring to impliedly express the wish that counsel would not unnecessarily go over the same ground by repeatedly asking questions which Avere bringing out no new facts.

6. The folloAving evidence was introduced Avhen plaintiff’s counsel asked witness Dr. T. P. Goodwyn: “Why didn’t you place it back when he did come to you?” AnsAver: “It would have necessitated an operation.” Objection by defendant: “This happened tAvo years later and we object to it as irrelevant.” Movant contends this evidence was illegally withheld from the jury by the court. This ground does not raise any question for decision by this court since it is impossible without searching in the brief of evidence for the context which would render the fragmentary extract from the evidence intelligible to discover whether the evi *147 dence repelled was material or not. Smith v. State, 126 Ga. 803 (2) (55 S. E. 1024); Thompson v. State, 118 Ga. 330 (45 S. E. 410).

7. To a certain question asked by the defendant’s counsel, plaintiff interposed the following objection: “We object to that if your Honor please.” This objection is too general to raise a question to be decided by this court. See the authorities cited in division 1 of this opinion.

8. Special grounds 8, 9, 10 are without merit. The defendant’s counsel was laying the foundation for the purpose of impeaching a witness of the plaintiff by calling plaintiff’s witness’s attention to the time, place, person, and circumstances attending the former statement, and then asking him if he had not, at that time and place, made statements contrary to what he was now swearing. The objection that the statements asked about were made, not in the presence of the plaintiff and therefore not binding on him, was not meritorious.

9. The objection to the judge’s charge as contained in ground 11 is the unnecessary repetition of the proposition that the proof must show that defendant was negligent in some one or more of the specific acts of negligence alleged in the petition. “A repetition of a proposition in different instructions may be of such a character as to be in the nature of an argument. However, an instruction is not argumentative merely because it contains unnecessary repetition.” Randall on Instructions to Juries,. 755, § 420. We do not think the charge was calculated to impress the jury with the thought that the court was against the plaintiff on the question of fact and that the jury might thereby be readily misled to believe that in the opinion of the court they should find against the plaintiff; The natural effect of the whole charge was to leave the minds of the jury to be operated on by the convincing power of the evidence. There is no merit in this ground.

10. The nature and extent of the plaintiff’s injury, if any, was one of the material issues in this case. The plaintiff introduced an x-ray which was taken by a doctor two years after the accident. It was shown by the plaintiff’s own testimony that he first consulted Dr. Bonner as his personal physician immediately after the injury and received treatment on different occasions; that Dr. Bonner, a short time thereafter, referred the plaintiff to Dr. Will *148

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Bluebook (online)
6 S.E.2d 99, 61 Ga. App. 145, 1939 Ga. App. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laney-v-barr-gactapp-1939.