Opinion
44870.
SUBMITTED NOVEMBER 3, 1969.
DECIDED JANUARY 30, 1970.
Action for damages. Cook Superior Court. Before Judge Lott.
Bloch, Hall, Hawkins Owens, F. Kennedy Hall, for appellant.
Coleman, Blackburn, Kitchens Bright, J. Converse Bright, for appellee.
1. The evidence did not demand a finding in favor of defendant's pleaded affirmative defense that plaintiff's claim had been released.
2. In any case in which the inquiry is material the method by which a public road was established — whether by legislative enactment, by order of a court of competent jurisdiction, by formal action of the county authorities, by dedication, or by prescription — must be shown. A statement by a witness that a road is a public road, without the basis for the witness' opinion being stated, is objectionable as a conclusion. If, however, no objection is made to the statement, and it stands uncontroverted and untested by other evidence, it will be accepted by the reviewing court as sufficient proof of that fact to support a verdict.
3. Admission of evidence over objection, if error, is rendered harmless when it appears that evidence to the same effect was admitted without objection.
4. Under CPA § 50 (b) ( Code Ann. § 81A-150 (b)), a motion for judgment notwithstanding the verdict may be entertained only if the movant has made a motion for a directed verdict at the close of all the evidence.
SUBMITTED NOVEMBER 3, 1969 — DECIDED JANUARY 30, 1970.
Rudolph Blanchard brought suit against the defendant railway company for property damage to his automobile which resulted from defendant's train striking the automobile while its frame was hung on the rail with its front wheels between the ties and the rear wheels in a narrow ditch prepared by the railroad for a pipe in a dirt road crossing the track. The jury returned a verdict for plaintiff in the amount of $1,907.50, and defendant appeals.
Cf. Callaway v. Zittrouer, 69 Ga. App. 338 ( 25 S.E.2d 311).
1. There was no error in failing to grant a new trial on the ground that the plaintiff's own testimony showed that his claim had been released. On the first trial of this case there was admitted into evidence a draft in the sum of $300 given by the defendant to the plaintiff which recited that it was "in full settlement for all damages incident to crossing accident at or near Cecil, Georgia, on or about the 8th day of September, 1964; excluding any rights under existing insurance policies, nor hinders subrogation rights of Calvert Fire Insurance Co." We held in the prior appeal that this draft was erroneously admitted because the defendant's pleadings did not raise the affirmative defense of accord and satisfaction, release or settlement. Blanchard v. Ga. Sou. c. R. Co., 117 Ga. App. 858 ( 162 S.E.2d 442). Prior to the trial resulting in the judgment which is the subject of this appeal, defendant amended its answer and specifically pleaded the negotiated draft as a release to meet our ruling; it did not, however, introduce the draft into evidence at the trial. The only evidence on this trial as to a release was plaintiff's testimony that a Mr. Tillison, who was unidentified by the evidence, delivered a check to him to cover the $100 deductible under his insurance and $200 for his wheelchair which had been in the automobile, and that as far as plaintiff was concerned this was a release, although he did not know about his insurance company. There was no evidence to show that the check was given or made by or on behalf of defendant or related to it in any way. See Thomas v. Cities Transit, Inc., 98 Ga. App. 694 ( 106 S.E.2d 351) on the question of this plaintiff's right to proceed had the draft itself been introduced into evidence. Enumeration of error No. 1 is without merit.
2. Enumerations of error 2 — 5 are concerned with the question of whether the road crossing defendant's tracks was a "public road" within the meaning of Code § 94-503, 94-506. Enumerations 2, 4 and 5 complain of objected-to charges on the blowpost statute ( Code § 94-506), on Code § 94-503 (requiring railroad companies to maintain public roads where crossed by the railroad), and on prescription as a basis for establishing public roads, all of which charges depend for their applicability upon the existence of evidence from which an inference could be drawn that the road in question was a public road on the basis of prescription, no other basis being involved. As to what showing of prescription is sufficient, see Shirley v. Morgan, 170 Ga. 324 (3) ( 152 S.E. 831); Dunaway v. Windsor, 197 Ga. 705 ( 30 S.E.2d 627), or of dedication, Hyde v. Chappell, 194 Ga. 536 (2) ( 22 S.E.2d 313).
Similarly, enumeration 3 complains of the admission into evidence of a statement of plaintiff that the road in question was a public one. The question was asked, "Now this road that you were going down, it was open to the public? It was a public road?" The question was objected to on the grounds that it called for a conclusion without the basis for the witness' opinion being stated. The objection was overruled and plaintiff was allowed to state as a conclusion that it was a public road.
The objection should have been sustained. A "public road" within the meaning of the railroad statutes ( Code § 94-503, 94-506) may have its origin in a legislative Act, in the order of a court of competent jurisdiction, in formal proceedings by the county authorities establishing it, or it may come into existence by dedication or prescription. Southern R. Co. v. Combs, 124 Ga. 1004 ( 53 S.E. 508); McCoy v. Central of Ga. R. Co., 131 Ga. 378 ( 62 S.E. 297). See also Johnson v. State, 1 Ga. App. 195 ( 58 S.E. 265). The question as to the nature of the road was a crucial, ultimate question for the jury inasmuch as the court charged on the railroad's duties at public crossings under Code § 94-503, 94-506, and the witness should not have been allowed, over objection, to state as a conclusion that the road was a public one without testifying as to the basis for his opinion. Code § 38-1708. "In any case in which the inquiry is material the method in which a public road was established — whether by legislative enactment, by order of the county authorities, by prescription, or by dedication — must be shown." Hutchinson v. State, 8 Ga. App. 684 (1) ( 70 S.E. 63).
However, it appears that the plaintiff had earlier testified, without objection, that the dirt road was a "county road," and thus a public road. He was not cross examined on the matter. An "opinionative statement by a witness, even though it be unsupported by a statement of the necessary facts and circumstances on which it is based" will, nevertheless support a verdict, and "it cannot be questioned for the first time upon review, as incompetent and without probative value." Morgan v. Bell, 189 Ga. 432, 439 ( 5 S.E.2d 897). Another witness for the plaintiff, Fulp, testified to the same effect, additionally giving some of the facts upon which his opinion was based. While these may have been insufficient to meet the tests laid down as to what, in this frame of reference, a public road is, yet the facts which he stated do not contradict or disprove the plaintiff's conclusory statement, nor are they conclusive as to what might have been the basis of the plaintiff's opinion that it was a county road. If, on cross examination, plaintiff had stated as the basis for his opinion the same facts testified to by Fulp, we should be in the position of having to determine whether they were sufficient, or whether they may have disproved his premise. But that is not the case.
When a witness makes a conclusory statement to which no objection is proffered, but on cross examination he "gives in detail the facts upon which he bases his opinion and those facts obviously disprove the conclusion reached by him" the conclusion must be disregarded. Bacon v. State, 222 Ga. 151, 154 ( 149 S.E.2d 111).
This statement of the plaintiff, unobjected to, was sufficient to call into play the railroad's duties under Code § 94-503, 94-506. "Where a witness, without objection, testifies that a certain road is a public road, and no effort is made to test the sources of his information or question his statement that the road in question is in fact a public road, it must be assumed that more specific and definite proof of the fact that the road is lawfully a public road was waived. An opinionative statement of a witness, even though it be a conclusion unsupported by such facts as are necessary to constitute a road a public road, where no objection is urged thereto upon the trial, cannot be challenged for the first time upon review, as incompetent and insufficient." Hutchinson v. State, 8 Ga. App. 684 (1), supra. Accord: Bugg v. Cook, 32 Ga. App. 116 ( 122 S.E. 714).
See and compare: Code § 95-101, 68-1504, 23-701 (3), 102-103; Hart v. Taylor, 61 Ga. 156 (neighborhood road); Southern R. Co. v. Combs, 124 Ga. 1004, supra, (highway); Atlanta W. P. R. Co. v. Atlanta, B. A. R. Co., 125 Ga. 529, 545 ( 54 S.E. 736) (highway); Griffin v. Sanborn, 127 Ga. 17 (2) ( 56 S.E. 71) (road); Penick v. County of Morgan, 131 Ga. 385 ( 62 S.E. 300) (public road); Lee County v. Mayor c. of Smithville, 154 Ga. 550 ( 115 S.E. 107) (public road); Schlesinger v. City of Atlanta, 161 Ga. 148, 159 ( 129 S.E. 861) (highway); Shirley v. Morgan, 170 Ga. 324 (3) ( 152 S.E. 831) (highway); Powell v. State, 193 Ga. 398 (2) ( 18 S.E.2d 678) (highway, public highway); Johnson v. State, 1 Ga. App. 195 (2) ( 58 S.E. 265) (public highway, public road); Early County v. Fain, 2 Ga. App. 288 ( 58 S.E. 528) (public bridge, public road); Wells v. State, 33 Ga. App. 426 ( 126 S.E. 856) (public road); Jones v. Continental Life Ins. Co., 37 Ga. App. 289 ( 139 S.E. 911) (public highway); Moye v. State, 46 Ga. App. 727 (2) ( 169 S.E. 59) (public highway — Federal highway); Barker v. Life Cas. Ins. Co. of Tenn., 78 Ga. App. 252 ( 50 S.E.2d 375) (public highway); Isenhower v. State, 88 Ga. App. 762 ( 77 S.E.2d 834) (public road); McGregor v. State, 89 Ga. App. 522 (4) ( 80 S.E.2d 67) (public highway). "Public road," of course, includes more than a "county road," i.e., a city street, or a State-aid road.
Enumeration of error 3 shows error, but under the rule that it is harmless where similar evidence was allowed to go in without objection, no cause for reversal is shown. Enumerations numbered 2, 4 and 5 are without merit.
3. In enumeration numbered 6 complaint is made of the admission of certain testimony that the train was running behind schedule. But again it appears that the same testimony was elsewhere admitted without objection, and if error, it was harmless. Sapp v. Callaway, 208 Ga. 805 (3) ( 69 S.E.2d 734).
4. No error in the denial of defendant's motion for judgment n.o.v. appears. In the state of the record we do not conclude that the evidence demanded a verdict for the defendant. Moreover, it does not appear that a motion for directed verdict was made at the close of all of the evidence, as we conclude is required by Code Ann. § 81A-150 (b). See: 5 Moore's Fed. Practice (2d Ed. 1968), 2357, 2358, § 50.08; Shetzen v. C. G. Aycock Realty Co., 93 Ga. App. 477, 479 ( 92 S.E.2d 114); Crown Carpet Mills v. C. E. Goodroe Co., 108 Ga. App. 327 (1a) ( 132 S.E.2d 824).
Nor do we find error in the denial of a motion for new trial.
Judgment affirmed. Bell, C. J., and Deen, J., concur.