Morgan v. Mull

112 S.E.2d 661, 101 Ga. App. 36, 1960 Ga. App. LEXIS 1047
CourtCourt of Appeals of Georgia
DecidedJanuary 5, 1960
Docket37943
StatusPublished
Cited by5 cases

This text of 112 S.E.2d 661 (Morgan v. Mull) 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
Morgan v. Mull, 112 S.E.2d 661, 101 Ga. App. 36, 1960 Ga. App. LEXIS 1047 (Ga. Ct. App. 1960).

Opinions

Nichols, Judge.

1. Special ground 1 of the amended motion for new trial assigns error on the exclusion of certain testimony by the defendant, the witness Ernest Lair and the plaintiff himself on cross-examination, relative to the quarrelsome and violent character of the plaintiff. There is- only one assignment of error on the exclusion of all of the testimony ,on this subject. A portion of Lair’s testimony on direct examination concerns particular acts of a quarrelsome and violent nature on the part of the plaintiff. Where it becomes material to- inquire whether a party possesses a quarrelsome or violent character, any evidence of the existence of a general reputation which tends to establish such character is admissible, but it is not competent for the party offering a witness for that purpose to show particular acts of violence or manifestations of petulance in particular instances by the person whose character is under investigation. Columbus & Rome Ry. Co. v. Christian, 97 Ga. 56 (3) (25 S. E. 411). This part of Lair’s testimony was therefore inadmissible- and since this ground assigns error on the exclusion of the testimony specified as a whole-, it does not require the grant of a new trial. Jones v. Blackburn, 75 Ga. App. 791 (8) (44 S. E. 2d 555) and cases cited; Chambers v. Wesley, 113 Ga. 343 (2) (38 S. E. 848). [38]*382. Special ground 2 complains that the trial judge prejudiced the jury in its consideration of the credibility of the testimony of the defendant by stating that in the presentation of the defense case, he should testify first “and then there is no question about his listening to the other testimony first.” Upon' objection by counsel, the' defendant was allowed to remain in the courtroom and to testify after several defense witnesses. When a party to an action intends to be a witness for himself, the court may in its discretion require that such party should first be examined in the absence of his other witnesses. Tift v. Jones, 52 Ga. 538 (4); Boutelle v. White, 40 Ga. App. 415 (1) (149 S. E. 805); Cone v. Davis, 66 Ga. App. 229, 238 (17 S. E. 2d 849). The defendant made no motion for a mistrial, but regardless of whether or not he should have done so, we see no prejudice in the statement complained of in this ground.

3. Special ground 3 complains of the • admission of the testimony of the witness Camp, who had remained in the courtroom after the defendant had asked for sequestration of the witnesses at the beginning of the trial.' It does not appear from this ground that any'objection was made to this testimony in the trial court and the mere fact that certain reasons were stated therein why the evidence was not admissible is insufficient. Norman v. McMillan, 151 Ga. 363 (4) (107 S. E. 325); Miller v. Coleman, 213 Ga. 125 (7) (97 S. E. 2d 313). This ground is therefore incomplete and will not be considered.

4. Special ground 4 complains of the admission of testimony of the plaintiff’s wife that he .indicated pain by holding his head constantly in a certain manner indicated by the witness. The wife could not properly testify as to any complaints of pain and suffering which the plaintiff may have made to her because such testimony would be mere hearsay. Atlanta St. R. Co. v. Walker, 93 Ga. 462, 467 (21 S. E. 48). She may, however, give testimony expressing her personal observations as to symptoms which she observed, indicating that her husband suffered from headache, although she may not be permitted to generalize or state any bare conclusion based upon her observation of others who suffered from headache. Macon Ry. & Light Co. v. Mason, 123 Ga. 773 (8) (51 S. E. 569); Bagwell & Stewart, Inc. v. Bennett, [39]*39214 Ga. 780 (2) (107 S. E. 2d 824); Savannah &c. R. Co. v. Wainwright, 99 Ga. 255 (3) (25 S. E. 622). It appears that the testimony of the plaintiff’s wife is limited to a statement of the symptoms indicating that her husband suffered from pain and headache and it is therefore not within the realm of hearsay. The court did not err in admitting this testimony into evidence.

5. Special ground 5 assigns error on the refusal of the court to permit an employee of the defendant to testify that he had asked the plaintiff not to come back to the defendant’s place of business. Not only does this evidence fail to indicate whether the witness was acting in the scope of his employment at the time he so advised the plaintiff, but the testimony which this witness had already given shows that when the plaintiff entered the premises at the time of the altercation which is the subject of this action, his presence had been ratified by sending him to see the defendant who had subsequently conducted the plaintiff back to the service department for the purpose of inquiring into his complaint about a certain bill. Therefore, the court did not err in refusing to admit the evidence complained of in this ground.

6. Special ground 6 complains of the failure of the court to define either “assault” or “battery” in the charge to the jury. No request for such definition was submitted and this ground does not indicate what definition the court' should have given. The evidence in the record demands a finding that the defendant committed assault and batteiy on the plaintiff, the only issue in this respect being that of justification, which was adequately covered in the charge. Under these circumstances, the failure of the court to define these terms in the absence of a timely written request is not prejudicial and this ground, is therefore without merit.

7. Special ground 7 assigns error on that portion of the charge to the effect that the jury might find punitive damages if satisfied from the evidence that there was an entire want of care by the defendant’s employees. The actual charge on this subject was as follows: “The plaintiff claims that because of circumstances out of which the assault grew, he is entitled to what is known as punitive damages. In every tort there may be ag[40]*40gravating circumstances either in the act or the intention, and if the jury finds there were such aggravating circumstances, they may give additional damages, either to deter the wrongdoer from repeating the trespass, or as compensation for wounded feelings of the plaintiff. But to authorize a finding for punitive or exemplary damages the jury must be satisfied from the evidence that there was some wilful misconduct on the part of the defendant or his employees, as the case may be, which would give rise to the presumption of a conscious indifference to consequences. There must be some evidence satisfactory to the jury either of malicious wantonness or of an oppression by the defendant against the person claimed to have been injured.”

The petition alleges “that the defendant herein conducts an automobile sales agency and garage located at 205 West 7th Street, in the city of Rome, said state and county; that on or about five thirty p.m., on Oct.

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Morgan v. Mull
112 S.E.2d 661 (Court of Appeals of Georgia, 1960)

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Bluebook (online)
112 S.E.2d 661, 101 Ga. App. 36, 1960 Ga. App. LEXIS 1047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-mull-gactapp-1960.