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HOLMES et al. v. BURKETT; and vice versa.
37340.
37356.
Action for damages. Fulton Superior Court. Before Judge Pharr. July 2, 1958.
NICHOLS, Judge.
1. The verdict for the plaintiff was authorized by the evidence.
2. (a) It is too late to urge objections to the admission of evidence after it has been admitted without objection.
(b) A ground of objection that evidence is remote and would tend to be prejudicial, without more, is legally insufficient to raise a valid objection.
(c) It is too late to urge objections to evidence for the first time in argument before this court. 3. The verdict was not so excessive as to show bias and prejudice.
Mrs. Martha Burkett sued Dudley B. Holmes, Jeff D. McCrary, and Willie Nix to recover for injuries allegedly received when an automobile in which she was a guest passenger collided with some concrete blocks thrown from a truck owned by the defendants Holmes and McCrary and being driven by the defendant Nix in the scope of his employment for the defendants Holmes and McCrary. It was alleged that as the truck, loaded with concrete blocks stacked four or five high, rounded a curve, traveling in the opposite direction from the automobile in which the plaintiff was a guest, because no sides or stakes were on the truck to hold the load of blocks in place, and because of other alleged acts of negligence, some of the concrete blocks were thrown or fell onto and immediately in front of the car in which the plaintiff was a guest causing her alleged injuries and damages. The jury returned a verdict for the plaintiff which was made the judgment of the trial court. The defendants' amended motion for new trial was denied and it is to this judgment that the defendants except in the main bill of exceptions. The plaintiff, in a cross-bill, complains of certain judgments of the trial court made in connection with the defendants' motion for new trial.
1. The evidence, both oral and documentary, is quite extensive and voluminous in this case and for the purpose of passing on the usual general grounds of the motion for new trial we deem it neither necessary nor beneficial to set out or quote any portion of it. Suffice it to say that after a careful reading and a thorough consideration of the record the conclusion is mandatory that the evidence amply supports the verdict, and the trial court did not err in denying the motion for new trial as to the usual general grounds.
2. Special ground numbered 4 complains of the ruling admitting in evidence over the objection of the plaintiffs in error, certain photographs identified as plaintiff's exhibits 26, 27, 28, 31, 32, 33, 34, 35, 36, and 38.
In ruling on this ground we think it most salutary here to set out in detail from the record the colloquies between Mr. Shelfer, counsel for the plaintiffs in error, Mr. Aiken, counsel for the defendant in error, and the trial judge, at the time said exhibits were tendered and offered in evidence: "The Court: speaking to Mr. Aiken] Well, if you are going to tender them, let them be marked as plaintiff's exhibit, let the reporter identify them." Mr. Shelfer: "Shall I make my objection to them?" The Court: "Let him identify them, first." The reporter marked the above mentioned photographs for identification as plaintiff's exhibits]. Mr. Aiken: "If Your Honor pleases, I offer certain pictures identified as follows, by numbers as follows -- I will put witnesses on the stand, Mr. Turner and Mrs. Burkett, to state when and where the pictures were taken; they are numbered 29, 30, 28, 27, 26, 18, 19, 20, 21, 22, 23, 24, 25 -- it looks like 36; 40, 43, 41, 42, 37, 39, 38, 35, 34, 33, 32, and 31, for the purpose of illustrating, if they do, the general appearance of the plaintiff in this case before and after she was hurt, and I will . . . of course offer evidence to show when the pictures were taken with reference to this occurrence." The Court: "Do you have any objections to them, Mr. Shelfer?" Mr. Shelfer: "Your Honor, we are not going to make any objection to them." Mr. Aiken: "I thank counsel." The Court: "All right, they are admitted."
Later in the course of the trial and before the plaintiff had rested her case, the following colloquy between counsel and the trial court transpired: Mr. Aiken: "Your Honor, if Your Honor pleases, in order that there may not be any misunderstanding about the exhibits, with Your Honor's permission, I am going to -- some may haven been offered but I want to be sure I have got them all in; I first offer plaintiff's exhibit [whereupon fifteen (15) of plaintiff's exhibits were admitted without objection] . . ." Mr. Aiken: "Plaintiff's exhibits 26, 28, and 36." Mr. Shelfer: "With reference to plaintiff's exhibit 26, which appears to be a photograph of the plaintiff at a remote time, greatly remote from the incident involved, made under very favorable circumstances, and plaintiff's exhibits numbers 28 and 36 appear to have been made at times remote from the incident involved or under highly favorable circumstances, would not illustrate any issue in this case, would tend to be prejudicial and, therefore, should not be admitted into evidence and we object to them on that ground." . . [After extended colloquy between the Court and Mr. Aiken] . . . The Court: "All right, I will overrule the objection and admit them; the jury may attach such probative value to them as they deem proper."
The plaintiffs in error contend that the exhibits were first admitted into evidence qualifiedly subject to later objections. With this we cannot agree as the above quoted excerpts from the record do not warrant such conclusion.
In the first place it is a well-settled rule in this State that it is too late to urge objections to the admission of evidence after it has been admitted without objection. Legg v. Legg, 165 Ga. 314 (140 S. E. 868); City of Manchester v. Beavers, 38 Ga. App. 337 (144 S. E. 11); Clare v. Drexler, 152 Ga. 419 (110 S. E. 176).
In the second place, assuming but not deciding that the exhibits were tentatively admitted in evidence when first tendered and subject to later objections, the objection urged at that time [on the grounds of: "With reference to plaintiff's exhibit 26, which appears to be a photograph of the plaintiff at a remote time, greatly remote from the incident involved, made under very favorable circumstances, and plaintiff's exhibits numbers 28 and 36 appear to have been made at times remote from the incident involved or under highly favorable circumstances, would not illustrate any issue in this case, would tend to be prejudicial and, therefore, should not be admitted evidence and we object to them on that ground."], was legally insufficient to constitute a valid objection. McBride v. Johns, 73 Ga. App. 444 (36 S. E. 2d 822); Greyhound Corp. v. Clough, 211 Ga. 574 (87 S. E. 2d 387).
The plaintiffs in error further contend in their brief that under special ground 4 of their amended motion the trial court erred in admitting the photographs "particularly in view of the fact that nowhere in the record was any foundation laid for the admissibility of said photographs."
Assuming but not deciding that such objection might have been a good and valid objection if urged at the time tender was made of the photographs, no such objection was made at the time the photographs were tendered and it is too late to raise an objection for the first time on appeal to the admission of evidence on the trial. Hardy v. Hardy, 149 Ga. 371 (100 S. E. 101).
Special ground 4 is obviously without merit.
3. Special ground 5 assigns error on the ground that the verdict for the plaintiff for $16,000 was so excessive as to show bias and prejudice on the part of the jury.
Inasmuch as the general grounds of the motion for new trial have already been passed on, the question here presented is whether the amount of the verdict was authorized.
Under the decisions of this court in City of Commerce v. Bradford, 94 Ga. App. 284, 291 (94 S. E. 2d 160), and Limbert v. Bishop, 96 Ga. App. 652, 658 (101 S. E. 2d 148), it cannot be said that the verdict for the plaintiff for $16,000 was, as a matter of law, so excessive as to show bias and prejudice.
The judgment denying the amended motion for new trial was not error for any reason assigned, and it becomes unnecessary to pass on the cross-bill of exceptions.
Judgment affirmed on main bill of exceptions. Cross-bill of exceptions dismissed. Felton, C. J., and Quillian, J., concur.
Arthur G. Withers, G. Seals Aiken, W. O. Slate, contra.
Dunaway, Embry & Shelfer, William D. Shelfer, for plaintiffs in error.
DECIDED SEPTEMBER 18, 1958.
Saturday May 23 01:18 EDT


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