Edwards v. Adams

Eberhardt, Judge. 1. Where the evidence upon the issues was conflicting an enumeration urging error in the denial of a motion for new trial as to the general grounds is without merit. 2. There was no error in excluding testimony of the plaintiff that “due to the downpour of rain I cautioned my son to drive careful.” The statement was in the nature of a self-serving one. Aripeka Sawmills v. Ga. Supply Co., 143 Ga. 210 (4) (84 SE 455); Denton v. Etheridge, 73 Ga. App. 221 (3) (36 SE2d 365). Cf. Studdard v. Turner, 91 Ga. App. 318 (lb) (85 SE2d 537). It had no probative value insofar as the negligence vel non of the son was concerned. Augusta & S. R. Co. v. Randall, 85 Ga. 297 (2) (11 SE 706). 3. (a) Where the plaintiff was asked on cross examination [509] whether his allegation that he had spent $882 for the repair of his automobile was quite correct answered, “My insurance company spent that money,”1 the overruling of a motion by his counsel for a mistrial was not error, it appearing that plaintiff had received a bid of $852 for the making of the repairs, and it further appearing that the court immediately instructed the jury that the matter of whether there had been insurance was wholly immaterial to the issues on trial and that they should completely disregard the answer which plaintiff had made to the question. It is obvious that plaintiff, in giving this answer, had not understood what counsel sought from him. The answer was not responsive, and we can see no basis for concluding that the defendant was attempting to inject the matter of insurance for whatever advantage it might afford him with the jury. Steinmetz v. Chambley, 90 Ga. App. 519 (5) (83 SE2d 318). See Partridge v. Lee, 116 Ga. App. 800 (159 SE2d 113), where, after plaintiff had testified that he had not assigned his claim to any third party, the defendant sought to introduce correspondence between the plaintiff-insured and the insurance company, as well as the proof of loss and the loan receipt, none of which contained an assignment. There was no motion for mistrial, only to exclude the evidence, which, as here, the court did. (b) Moreover, it does not appear that the motion for mistrial was renewed after the court’s ruling. Kendrick v. Kendrick, 218 Ga. 460 (4) (128 SE2d 496). 4. A contention that an additional principle of law should have been charged, not having been urged before verdict, is without merit. Foskey v. State, 116 Ga. App. 334 (2) (157 SE2d 314). This is particularly true where, as here, there was no written request for the additional charge. Barnes v. Barnes, 224 Ga. 92 (3). Submitted February 5, 1968 Decided March 13, 1968 Rehearing denied March 29, 1968. O. J. Tolnas, for appellant. Hudson & Stula, Jim Hudson, for appellee. Judgment affirmed. Bell, P. J., Hall and Whitman, JJ., concur. Felton, C. J., and Pannell, J., concur as to Divisions 1 and 4, concur specially as to Division 2, hut dissent as to Division 3. Jordan, P. J., and Quillian, J., concur as to all divisions save 3(h), as to which they dissent. Deen, J., concurs as to all Divisions save 3(a), as to which he dissents. Footnotes [1] Nothing in the record indicates that there had been any assignment of the insured’s claim, or whether the payment had been made under a “loan receipt,” or some agreement authorizing the company to sue in the insured’s name. See Benefield v. Malone, 110 Ga. App. 607, 612 (4) (139 SE2d 500), s.c., 112 Ga. App. 408 (1) (145 SE2d 732), and Partridge v. Lee, 116 Ga. App. 800 (159 SE2d 113), where the subrogation was under a “loan receipt.”