Security Life Insurance v. Newsome

176 S.E.2d 463, 122 Ga. App. 137, 1970 Ga. App. LEXIS 808

• Court: Court of Appeals of Georgia
• Decided: June 9, 1970
• Docket: 44984
• Status: Published

Opinions

Jordan, Presiding Judge.

Appeal by the defendants in an assault and battery action from the judgment and from the denial of their motion for a new trial. The jury returned a verdict for $3,000.

1. Plaintiff was a salesman for defendant Security Life. Defendant Bell was its district manager. Plaintiff’s complaint alleged that on August 31, 1967, Bell, acting within the scope of his employment, suddenly and without provocation assaulted plaintiff and struck him a severe and crushing blow on the head. Bell testified that he had discovered several fraudulent claims submitted by plaintiff and had called him into the office that morning; that plaintiff was wild and acted drunk; that there had been a row; and that he had asked plaintiff to turn in his records for audit. When plaintiff told him the "life register” was at his house, Bell decided to go after it personally. He stopped first to see one Buffington, another employee and plaintiff’s immediate supervisor, who accompanied him the rest of the way. When there was no answer to his knock at the plaintiff’s house, Bell went next door to the home of plaintiff’s mother-in-law, Mrs. Humphries, to ask when plaintiff’s wife would be expected back. Mrs. Humphries sent a young grandson inside to telephone the wife at a neighboring farm. She and Bell sat down on the front porch to wait. In a few moments plaintiff drove up and approached the porch. Testimony concerning the next few minutes is in conflict. Mrs. Humphries said that Bell rose from his chair, pushed plaintiff against the house, took his head between his hands and pounded it against the house (but did not strike plaintiff with his fist). Plaintiff said merely that Bell grabbed and hit him. Bell testified that when plaintiff came onto the porch he had tried to attack Bell; that Bell had pinned him to the side of the house by the shoulders to restrain him; and that plaintiff had knocked his own head against the wall three times. Buffington, who had waited in the car, corroborated this version except for the question of. who banged plaintiff’s head. He could not see this part of the incident from his vantage point. Plaintiff became momentarily unconscious. At the request of Mrs. Humphries, Bell and Buffington tried to assist him to a bed. Partway there, plaintiff broke away and ran back to the porch (where he attempted to hit Bell with a chair), then leapt over the railing and ran to his own house, calling out that he was going for a gun. Bell and Buffington went to their car to leave the scene. At this moment plaintiff’s wife drove up and exchanged a few words with them. The defendants introduced medical and lay testimony that plaintiff was a drug addict up until a few months prior to the incident in question when he had received clinical treatment. They also produced admissions by the plaintiff tending to show a continuing addiction. The evidence of plaintiff and Mrs. Humphries is sufficient to support the verdict.

2. Three of the special grounds in the motion for a new trial deal with the refusal of the court to allow direct testimony or cross examination on certain events earlier in 1967. Defendants contend this evidence would show a pattern of violent behavior by the plaintiff while under the influence of drugs, supporting Bell’s defense that plaintiff was the aggressor. While there may be a logical connection in the minds of defendants, statutory and case law clearly declare evidence of conduct in other transactions to be irrelevant. Code Ann. §§ 38-302 and 38-1804; Stanley v. Hudson, 78 Ga. App. 834 (52 SE2d567). In the event such similar acts should fall within one of the exceptions to the general rule, it is still within the discretion of the trial court to exclude it because of remoteness in time or prejudicial effect. Green, The Georgia Law of Evidence § 68. The enumeration shows no reversible error.

3. Defendants further charge error in the refusal of the trial court to allow them to cross examine one of their own witnesses after their counsel pleaded entrapment. Defendant’s counsel asked witness whether prior to August 31, 1967, he had ever seen the plaintiff when intoxicated or abnormal by reason of consumption of alcohol or dope, to which witness gave a negative answer. This led to counsel’s plea of entrapment on the basis that the witness had related to him previously that he had seen the plaintiff when he was on dope. After the colloquy, and the ruling by the court that he would not allow cross examination on the basis of entrapment, counsel for defendant continued to question the witness who then immediately testified that he had seen Mr. Newsome on a prior occasion when he thought he had been taking dope or using alcohol, going into the details of his conduct on that occasion.

Argued January 12, 1970 Decided June 9, 1970 Rehearing denied July 6, 1970 Fulcher, Fulcher, Hagler, Harper & Reed, Gould B. Hagler, for appellants. Sanders, Hester, Holley, Ashmore & Boozer, Thomas R. Bum-side, Lamar C. Walter, for appellee.

It thus appears that the witness gave the same version from the stand as related previously by' him to defendant’s counsel, thereby eliminating the basis for the previous plea of entrapment and rendering harmless the error, if any, on the ruling on the plea.

Judgment affirmed.

Pannell, Deen and Whitman, JJ, concur. Evans, J., concurs specially. Bell, C. J., Hall, P. J., Eberhardt and Quillian, JJ., dissent.