Patillo v. Thompson

128 S.E.2d 656, 106 Ga. App. 808
CourtCourt of Appeals of Georgia
DecidedNovember 1, 1962
Docket39558
StatusPublished
Cited by33 cases

This text of 128 S.E.2d 656 (Patillo v. Thompson) 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
Patillo v. Thompson, 128 S.E.2d 656, 106 Ga. App. 808 (Ga. Ct. App. 1962).

Opinions

Frankum, Judge.

A motion for new trial goes only to the verdict and reaches only such errors of law and fact as contributed to the rendition of the verdict. Herz v. Claflin Co., 101 Ga. 615 (5) (29 SE 33); Ray v. Wood, 93 Ga. App. 763 (1) (92 SE2d 820). In an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for a mistrial. Minnick v. Jackson, 64 Ga. App. 554 (13 SE2d 891). See Green, Ga. Law of Evidence, § 73. Therefore, while a litigant has at least a qualified right to obtain information as to the opposite party’s insurance coverage, certainly for the purpose of purging the jury (Atlanta Coach Co. v. Cobb, 178 Ga. 544, 174 SE 131), and perhaps for other purposes (see Anno., 41 ALR 2d 968), whatever his remedy to enforce that right may be, it is not by a special ground of a motion for new trial, unless [810]*810the error in failing to produce the information would in fact have affected the verdict, for example, where the failure to reveal the name of the insurance carrier results in the selection of a juror who would have otherwise have been disqualified. Movant fails to show here that the exhibition of the policy to her would have affected the trial of the case or the verdict therein rendered. The contention of the plaintiff in error here in the 4th special ground of the motion for a new trial that the verdict should be set aside because, although by a pretrial order the defendant was required to produce its insurance policy pertinent to this case at the time of the trial, the court did not further require the surrender of the policy for examination by the plaintiff’s counsel, is without merit.

Code Ann. § 6-901 requires either that special grounds of a motion for new trial be complete within themselves or that they “point out such parts of the record or brief of the evidence by page number as are necessary to an understanding of the error complained of.” Failure to meet one or the other of these standards still results in the assignment of error being too imperfect for consideration by this court. Heard v. Heard, 99 Ga. App. 864 (3) (110 SE2d 76); Valdosta Coca-Cola Bottling Works v. Montgomery, 102 Ga. App. 440 (2) (116 SE2d 675).

Special grounds 7 and 8 of the motion for new trial complain that the plaintiff was not allowed to present evidence of her good character, and that the court, in charging on the subject of impeachment by contrary extra-judicial statements, failed to add, “'When thus impeached, he may be sustained by proof of general good character.” Grounds 9 and 10 complain that the court instructed the jury that there was no evidence to support certain allegations of negligence in the plaintiff’s petition. None of these grounds is meritorious unless there is in the record evidence relating respectively to these grounds, (a) of prior contradictory statements by the defendant Cash, and (b) of specific acts of negligence alleged in the subparagraphs as to which the court charged that no proof had been offered. Grounds 7 and 8 refer the court generally to 146 pages of record; grounds 9 and 10 refer us to 369 pages. None of these grounds sets out either the evidence upon which it is contended the instruction would [811]*811have been warranted or points to any specific part of the record or to the testimony of any particular witness which would substantiate the claim. On the contrary, a cursory examination of the lengthy portions of the record to which reference is made shows that in general they are completely foreign to the issues raised by these grounds. It may be that within this haystack of reference there lies the needle of relevant testimony, but we cannot search it all in order to ascertain the fact with certainty. Grounds 7, 8, 9, and 10 are accordingly not in proper form for consideration.

An instruction that “the burden of proof in the case is on the plaintiff to establish to your satisfaction by a legal preponderance of the evidence the material allegations of her petition” is an accurate statement of the law. Morgan v. Reeves, 84 Ga. App. 41 (3) (65 SE2d 453). It is also correct to define what is meant by preponderance of evidence in the language of Code § 38-106, and to add, “and where there is more than one issue in the case, this rule or definition of preponderance of the evidence relates to each and all of the issues of fact to be determined by you,” since, regardless of where the burden of proof lies, it is correct to instruct the jury that they shall find according to the preponderance of evidence upon any issue submitted. Strahley v. Hendricks, 40 Ga. App. 571 (8) (150 SE 561); Bainbridge Power Co. v. Ivey, 38 Ga. App. 586 (6) (144 SE 825). Where special instructions are desired upon the subject of the preponderance of evidence as related to the shifting of the burden of proof where an affirmative defense is urged, such instructions should be requested in writing. Morgan v. Chunn, 7 Ga. App. 263 (2) (66 SE 965); Dillon v. Sills, 54 Ga. App. 299, 302 (5) (187 SE 725); Pan-American Wall Payer &c. Co. v. Tudor, 81 Ga. App. 417 (4) (59 SE2d 12); Segars v. City of Cornelia, 60 Ga. App. 457 (6) (4 SE2d 60). Special grounds of the motion for a new trial numbered 11 (complaining of charges on the burden of proof and preponderance of evidence), and 15 (complaining of the court’s failure to charge without request that the burden of proof shifted to the defendants to prove their defense of contributory negligence) are without merit.

“Actionable negligence involves, first, the existence of a [812]*812duty; second, the omission to exercise ordinary and reasonable care in connection therewith; and third, injury resulting in consequence thereof.” Atlanta Nat Bank v. Bateman, 21 Ga. App. 624, 628 (94 SE 853). See also Code § 105-101. It was not error, as alleged in special ground 12 of the motion for a new trial, for the court to charge the jury as follows: “. . . [I]njury, alone, does not create or impose liability, and negligence, alone, does not create or impose liability., In order for negligence to create or impose liability, insofar as the defendants are concerned, the plaintiff must have been injured as a result of the negligence of the defendants in one or more of the particulars set forth in the plaintiff’s petition as amended as the. proximate cause of the alleged injury or injuries sustained ...” The plaintiff in error cites Holloway v. Mayor &c. of Milledgeville, 35 Ga. App. 87 (132 SE 106); Huckabee v. Grace, 48 Ga. App. 621 (173 SE 744), and Emory University v. Lee, 97 Ga. App. 680 (104 SE2d 234), in each of which a portion of the charge was held to be error because it was argumentative. A reading of these cases clearly shows that the charge in this case is not subject to the defect that it suggested to the hearer one possible result with more emphasis than the other.

Special ground 13 complains that the trial court did not, without request, charge: “. . . [T]he law of Georgia provided on January 12, 1956, that no person shall drive a vehicle on a street or highway at a speed greater than is reasonable and prudent under the conditions, and having regard to the actual and potential hazards then existing.

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Bluebook (online)
128 S.E.2d 656, 106 Ga. App. 808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patillo-v-thompson-gactapp-1962.