Todd v. Fellows

Carlisle, Presiding Judge. 1. The admission of testimony of witnesses, as to payment being made on an indebtedness by a cashier’s check in a certain amount, over an objection made on the grounds that the check itself would be the highest and best evidence, if error, is harmless where the same witness and other witnesses testified to the same effect without objection. Cox v. State, 64 Ga. 374 (9) (37 AR 76); Simmons v. State, 34 Ga. App. 163 (1) (128 SE 690); Elders v. Griner, 40 Ga. App. 649 (2) (150 SE 857); Camp v. State, 41 Ga. App. 459 (1) (153 SE 382). 2. Where evidence is offered by both parties, and admitted without objection even though such evidence may not be authorized by the pleadings, and the issue made by such evidence becomes the primary and controlling issue in the case, it is not error for the trial judge to charge the jury upon such issue. See Simpson Grocery Co. v. Holley, 51 Ga. App. 355 (3) (180 SE 501), and the following cases cited therein: Haiman v. Moses, 39 Ga. 708 (3); Field v. Martin, 49 Ga. 268 (3); Howard v. Barrett, 52 Ga. 15 (2); Artope v. Goodall, 53 Ga. 318, 323 (5); Central R. &c. Co. v. Attaway, 90 Ga. 656, 659 (16 SE 956), and cit.; Howard v. Georgia R. & Power Co., 35 Ga. App. 273 (6) (133 SE 57). Cf. Western & A. R. Co. v. Sellers, 15 Ga. App. 369 (83 SE 445). 3. Where, under the pleading and the evidence, a plaintiff, if entitled to recover at all, is entitled to recover the full amount sued for, but no lesser sum, a charge given by the court to the jury is not objectionable, insofar as the plaintiff is concerned, because it does not permit the recovery of a lesser amount. 4. Even though a portion of the charge of the court excepted to may not be as clear and precise as could be desired, if the charge as a whole substantially presents the issues to the jury in such a way as not likely to confuse the jury, this court will not disturb a verdict amply authorized by the evidence. 5. The evidence sustains the verdict. 6. Applying the above rulings to the grounds of the motion for new trial and the amendment thereto, it does not appear that the trial judge erred in overruling the same for any reason assigned. Judgment affirmed. Bell and Hall, JJ., concur. *784 Decided May 15, 1963. McDonald, McDonald & Mills, J. C. McDonald, for plaintiff in error. M. L. Preston, G. H. Mingledorff, contra.