Summary
In Douglas v. American Cas. Co., 106 Ga. App. 744, 745 (128 S.E.2d 364), this court, considering the exclusion of documentary evidence, held: "Where the error complained of relate to and require a consideration of evidence, it must be brought up in the bill of exceptions or attached to it as exhibits properly identified by the trial judge or embodied in an approved brief of evidence and brought up as a part of the record."
Summary of this case from Mabry v. HenleyOpinion
39643.
DECIDED OCTOBER 11, 1962.
Action on insurance policy. Fulton Civil Court. Before Judge Smith.
C. M. Seward, for plaintiff in error.
Smith, Field, Ringel, Martin Carr, Palmer H. Ansley, contra.
1. Errors assigned in the exclusion of documentary evidence cannot be considered by this court where the evidence is not in the bill of exceptions, or attached to it as exhibits properly identified by the trial judge, or embodied in an approved brief of evidence and brought up as part of the record.
2. The ground of a motion for new trial that the trial judge permitted the opposing party constantly and repeatedly to make loud and argumentative objections to questions and documentary evidence offered by the movant is without merit where there is not shown any abuse of the discretion allowed the trial court as to the range of argument.
3, 4. Where there is no showing of prejudice in the ground of the motion for new trial, the assigned error is without merit.
5. In an action for medical and hospital benefits for a specific disease where the evidence reveals that no definite diagnosis was reached, the evidence is neither prima facie nor conclusively in favor of the plaintiff, and the motion for new trial on this ground was properly overruled.
DECIDED OCTOBER 11, 1962.
Plaintiff brought action upon a medical and hospitalization policy covering specific diseases, contending that he had become ill from one of the diseases listed and was entitled to benefits under the policy.
The defendant filed demurrers and an answer. After the ruling on demurrers, plaintiff rewrote his petition which was amended to charge that the defendant owed certain sums to the plaintiff for hospital and doctor's bills for treatment of encephalitis as covered under a policy issued by the defendant.
At the jury trial the only witnesses testifying were Dr. James T. Hughes and the plaintiff. The physician testified that his office examined the plaintiff but that he had nothing to do with the examination which was carried on by his partner. The defendant objected to the physician's testifying on several bases.
After the plaintiff rested, counsel for defendant moved to rule out the opinion and diagnosis of Dr. Hughes which rested upon a laboratory report. This contention being sustained, the defendant then moved the court to direct a verdict in favor of the defendant, which was done.
The trial court overruled the plaintiff's amended motion for new trial on all grounds, to which ruling exceptions were taken.
1. The amended motion for new trial refers to certain exhibits which do not appear in the record and are not properly identified by the trial judge. It is obvious that this court cannot consider the alleged error in the exclusion of documentary evidence when the evidence appears nowhere in the record. Where the errors complained of relate to and require a consideration of evidence, it must be brought up in the bill of exceptions or attached to it as exhibits properly identified by the trial judge or embodied in an approved brief of evidence and brought up as a part of the record. Unless one of these methods is employed, the evidence is not before this court, and obviously the errors based on the missing evidence cannot be considered. Flowers v. General Motors Acceptance Corp., 84 Ga. App. 681, 683 (1) ( 67 S.E.2d 159). See also Warren v. Hiers, 105 Ga. App. 202 (1) ( 124 S.E.2d 445). This disposes of special grounds numbered 1, 2, 3, 5, 8 and 10.
2. Special ground 4 contends that the court erred in permitting the defense constantly and repeatedly to make loud and argumentative objections to questions and documentary evidence offered by the plaintiff.
This ground has no merit.
The widest range of expression and forensic expression must be allowed to counsel. Spence v. Dasher, 63 Ga. 430; Southern R. Co. v. Wright, 6 Ga. App. 172, 174 ( 64 S.E. 703). The range of argument is within the discretion of the court. Adkins v. Flagg, 147 Ga. 136 ( 93 S.E. 92); Black White Cab Co. v. Clark, 67 Ga. App. 170 (12) ( 19 S.E.2d 570).
The matter of loudness of voice is necessarily a matter of degree and largely subjective in nature depending upon the state of efficiency of the hearer's auditory system. Objections are almost always argumentative, and in our adversary system of trial procedure, it is only natural for attorneys to carry on their verbal disputations with intensity and ardor. Both the substance of the argument and the loudness of the voice are matters within the control of the trial court. Here, there is not the slightest indication of any abuse of this discretion by the trial judge.
Special ground 4 of the motion for new trial was properly overruled.
3. Special ground 6 assigns error in the court's ruling inadmissible a statement made by one Kelley, representing himself as being a claim adjuster from the American Casualty Company. Neither this ground, nor the brief, nor the record shows how this alleged error of the trial court prejudiced the plaintiff.
The trial court properly overruled special ground 6 of the motion for new trial.
4. Special ground 7 maintains that the court erred in striking the testimony of Dr. James T. Hughes upon the motion of the defendant. This ground is incomplete as it does not show how the plaintiff was injured by the granting of the motion. Furthermore, this ground conflicts with the record itself which shows merely that the motion was to rule out the opinion and diagnosis of Dr. Hughes which rested upon a laboratory report. The court sustained the motion to strike only this portion of the testimony and not the entire testimony as special ground 7 maintains.
Even if the ground had been complete and shown a material error, it would appear that the testimony of the physician, resting upon a laboratory report, would not have been admissible, at least, without the testimony of a witness whose evidence showed that the report was a memorandum or record of an act, transaction, occurrence or event made in the regular course of the business, and that it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. Martin v. Baldwin, 215 Ga. 293 (2, 3, 4) ( 110 S.E.2d 344).
The trial court properly overruled special ground 7 of the motion for new trial.
5. Special ground 9 purports to assign error on the basis that the evidence was conclusively and prima facie in favor of the plaintiff. Even if this ground were complete enough to raise a proper question of error for consideration by this court, the testimony in the record of both the plaintiff and a physician reveals that no definite diagnosis was reached and that the plaintiff was told they didn't know what was wrong with him.
Since the action was for medical and hospital benefits for a specific disease and no definitive diagnosis had been reached, the evidence was not prima facie and certainly not conclusively in favor of the plaintiff.
The trial court properly overruled special ground 9 of the motion for new trial.
The general grounds of the motion for new trial were not argued and are deemed abandoned.
The trial court properly directed a verdict for the defendant.
Judgment affirmed. Felton, C. J., and Hall, J., concur.