Evans v. Batchelor

Stolz, Judge. In this action by a husband and wife for damages for the wife’s personal injuries resulting from being struck by the defendant’s automobile as she was walking across a highway at night, the plaintiffs appeal from the judgment for the defendant. 1. The trial judge did not err in excluding from evidence the plaintiffs’ offer of proof of the plaintiff wife’s testimony that the defendant stated to her, several days after the subject occurrence, "I am sorry this happened. I have insurance. I don’t want you to worry about it. It will take care of everything. I didn’t see you.” This proposed testimony consists of four elements: (1) an expression of regret, sorrow and/or sympathy, (2) an indication that insurance coverage exists, (3) a mere conclusion that the insurance will cover the plaintiffs’ losses, and (4) a statement that the defendant did not see the plaintiff wife. In Layton v. Knight, 129 Ga. App. 113 (3) (198 SE2d 915), this court held that "the alleged mention of insurance was not coupled with any admission of fault and would, therefore, be inadmissible in any event.” The testimony there excluded was to the effect that the plaintiff had talked to the defendant after the collision and told her that he saw her car swerve as it came over the hill, but he couldn’t stop in time to avoid hitting her, and not to worry about the collision, since his insurance would cover it. The four elements of the proposed testimony in the instant case do not, either singly or collectively, constitute an admission of fault which would be admissible, which distinguishes this case from those cited by the appellants. The acknowledgment that the defendant did not see the plaintiff wife, does not necessarily admit any negligence on the part of the defendant, especially under the evidence of the [630] circumstances of the occurrence, i.e., the plaintiff at night, wearing a blue coat, crossing an unlighted highway at a point just beyond the crest of a hill. Furthermore, this same evidence — that the defendant didn’t see the plaintiff until she was directly in front of him — was adduced several times by the defendant’s testimony. 2. " 'It is not error to allow witnesses to testify to their opinions of the speed of an automobile, whether they be expert or lay witnesses, where they have properly stated the facts upon which their opinions are based.’ ” Eastern Dehydrating Co. v. Brown, 112 Ga. App. 349 (4) (145 SE2d 274) and cit. The trial judge properly allowed the testimony of a motorist who had been driving 50 m.p.h., that the defendant passed him a short time before the point of impact at a speed which was somewhere between 50 and 60 m.p.h., but "wasn’t excessive.” Although opinions on excessiveness of speed may be conclusions "intimately related to the ultimate question of negligence and therefore an invasion of the province of the jury” (Tittle v. McCombs, 129 Ga. App. 148, 149 (4) (199 SE2d 363)), the witness here gave the facts upon which he based his opinion (i.e., the estimated speed of the defendant’s car, based upon its relationship to his own, plus his observation of existing conditions). Furthermore, his characterization of the defendant’s speed as not excessive related to the time at which he was passed by the defendant, not at the time of impact, which was for the jury to determine. Moreover, the testimony was not necessarily beneficial to the defendant, inasmuch as it indicated that he may have been driving at a speed of up to 10 m.p.h. greater than the 50 m.p.h. maximum limit in effect at the time of day (7 p.m.) and date (February 5, 1971) of the incident under the provisions of Code Ann. § 68-1626 (b) (2) (Ga. L. 1953, Nov. Sess., pp. 556, 577; as amended). 3. Enumerated errors 3 through 7 pertain to the failure to give requested charges which were all statements of law which were either incorrect, inapplicable or covered sufficiently elsewhere in the charge, hence were properly not given. 4. The amended motion for new trial was properly overruled. Argued September 8, 1975 Decided January 22, 1976 Rehearing denied February 17, 1976 Hudson & Montgomery, David R. Montgomery, for appellants. Ross & Finch, I. J. Parker son, A. Russell Blank, Sorrells, Hearn & Childers, George J. Hearn, III, for appellee. Judgment affirmed. Bell, C. J., Deen, P. J., Clark, Webb and Marshall, JJ., concur. Panned, P. J., Quillian and Evans, JJ., dissent.