West Lumber Co. v. Schnuck

69 S.E.2d 577, 85 Ga. App. 385, 1952 Ga. App. LEXIS 741
Court of Appeals of Georgia·Decided January 23, 1952·No. 33728·Published·Cited by 17 cases

Opinions

Worrill, J.

(After stating the foregoing facts.) Ground 1 of the amended motion for a new trial contends that the court erred in allowing counsel for the defendants to state, in his opening argument, that the plaintiff had not attempted to foreclose its lien in the way provided by law. Counsel for the plaintiff objected to the statement on the ground that it was improper and prejudicial, and made a motion for a mistrial. It is now contended that the statement was prejudicial because it allowed the jury to consider that the plaintiff’s failure to foreclose its lien according to statutory procedure was in itself a breach of some duty. “The trial court has a broad discretion in considering a motion for mistrial based on alleged improper arguments of counsel, and its discretion will not be disturbed unless manifestly abused.” McCoy v. Scarborough, 73 Ga. App. 519, 520 [388] (5) (37 S. E. 2d, 221). “In all motions for mistrial, the grant of the motion 'is largely within the discretion of the trial judge, and this discretion will not be interfered with unless manifestly abused.’ ” Grayhouse v. State, 65 Ga. App. 853, 855 (16 S. E. 2d, 787) and citations. See also City of Council of Augusta v. Hamilton, 56 Ga. App. 859, 861 (194 S. E. 244); Black & White Cab Co. v. Clark, 67 Ga. App. 170 (12) (19 S. E. 2d, 570). The discretion of the trial judge will not be controlled since no abuse is shown under the facts presented.

Grounds 2, 4, 7, 8, and 9 assign error on the admission of certain evidence over the objection each time that the evidence was incompetent, immaterial and prejudicial. These objections are too vague and indefinite to present anything for consideration by this court. “Ail objection to the admission of testimony, that it was 'irrelevent, immaterial, incompetent, inadmissible, and illustrated no material issue in the case,’ is too general to be considered by this court.” Woods v. Pass, 43 Ga. App. 487 (2) (159 S. E. 776). See also Barrett v. City of Brunswick, 56 Ga. App. 575 (2) (193 S. E. 450); Owen v. State, 78 Ga. App. 558 (2) (51 S. E. 2d, 602), and citations.

Ground 3 complains because the court sustained an objection of counsel for the defendants and refused to allow a witness for the plaintiff to answer a certain question. This ground is insufficient since it fails to reveal the expected .answer to the question propounded and show that the judge was apprised of it at the time the question was asked. York v. State, 42 Ga. App. 453, 455 (9) (156 S. E. 733); Shahan v. American Tel. &c. Co., 72 Ga. App. 749 (1) (35 S. E. 2d, 5); Western & Atlantic Railroad v. Fowler, 77 Ga. App. 206, 208 (9) (47 S. E. 2d, 874).

Ground 5 assigns error on the admission of certain evidence over the objection that the question called for a conclusion. This objection is so vague and general that it was not error for the coui*t to overrule it and admit the testimony. Harris v. State, 69 Ga. App. 872 (27 S. E. 2d, 51).

Ground 6 contends that the court erred in allowing a witness for the defendant to answer a certain question, over objection. The ground fails to reveal what answer was given. “Where a ground of a motion for a new trial complaining of the admission in evidence of certain testimony sets forth the question pro[389] pounded to the witness, but does not disclose the answer of the witness, and it is necessary to refer to the brief of the evidence in order to pass upon the admissibility of such testimony, it is incomplete and will not be considered by this court, [citing]” City of LaGrange v. Pounds, 50 Ga. App. 219, 223 (177 S. E. 762). See also: Bentley v. Southern Ry. Co., 52 Ga. App. 188, 189 (182 S. E. 815); Hardy v. State, 76 Ga. App. 488, 490 (46 S. E. 2d, 536).

Ground 10 contends that the court erred in giving a certain charge because it was erroneous and injurious to the plaintiff “for the reason that said charge was an unsound and incorrect statement of law, was confusing and misleading to the jury, and gave to the jury an erroneous measure of damages to return against the plaintiff, should the jury find the plaintiff had breached some contract with the defendants.” This ground is too general and indefinite to raise any question for decision by this court since it fails to point out wherein the charge was erroneous, injurious, confusing, misleading or otherwise insufficient as assigned. Wade v. Eason, 31 Ga. App. 256, 257 (1) (120 S. E. 440); Montgomery v. Nunnally, 43 Ga. App. 93 (2) (157 S. E. 911); Owen v. State, 78 Ga. App. 558, 559 (3), supra; Waters v. State, 83 Ga. App. 163, 166 (63 S. E. 2d, 264).

Ground 11 assigns error on the charge of the court relating to mitigation of damages on the ground that it was erroneous in that it placed a duty upon movant to notify the defendants of their intention to purchase and foreclose a certain loan deed on the property involved when there was no such duty and that the duty to mitigate damages arose only in the event of such notice. The charge stated a correct principle of law as applied to the facts of the case and was not error for any of the reasons assigned.

Grounds 12 and 13, which complain that the court refused to give the jury certain instructions requested in writing before the conclusion of the evidence, are defective since it is nowhere alleged that the requests were pertinent and applicable to the facts of the case. Killabrew v. State, 26 Ga. App. 231, 232 (2) (105 S. E. 711); Savannah & Southern Railway v. Davis, 28 Ga. App. 654 (2b) (112 S. E. 907); Hightower v. State, 33 Ga. App. 73 (1) (125 S. E. 511); Ward v. Gardner, 35 Ga. App. 569 (2) (134 S. E. 346).

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West Lumber Co. v. Schnuck, 69 S.E.2d 577, 85 Ga. App. 385, 1952 Ga. App. LEXIS 741 (Ga. Ct. App. 1952).

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West Lumber Co. v. Schnuck
69 S.E.2d 577 (Court of Appeals of Georgia, 1952)