Opinion
39274, 39275.
DECIDED APRIL 4, 1962. REHEARING DENIED APRIL 20, 1962.
Actions on insurance policy. Savannah City Court. Before Judge Alexander.
Hitch, Miller, Beckmann Simpson, Luhr G. C. Beckmann, Jr., for plaintiff in error.
Earl Waller, Allyn M. Wallace, contra.
1. When a document offered in evidence is admissible in part and inadmissible in part, and objection is made to the evidence as a whole, it is not error to admit the whole document.
2. When an objection is sustained to a question asked a witness on cross-examination, but the objection is thereafter withdrawn and the witness restored for the proposed cross-examination, the complaining party cannot successfully assign error on the sustaining of the objection.
3. ( a) When a previous written statement, contradictory to the testimony of a witness at the trial, is admitted in evidence without objection, the refusal of the court to recall the witness for further cross-examination, for the purpose of laying the foundation to show the impeaching contradictory statement, was not harmful to the complaining party; nor did it unduly abridge the complaining party's right to cross-examination.
( b) The discretion of the trial judge on the question of allowing a witness to be recalled for further examination, will never be controlled unless it is manifestly abused and the result palpably unfair and prejudicial to the complaining party.
4. Instructions to the jury which, when considered with the rest of the charge, were not harmful to the complaining party, are not reversible error.
5. When a written request to charge is substantially covered by the charge given by the court, the failure to charge as requested is not reversible error when there is no assignment of error complaining that the request to charge was not given in its exact language.
6. The ground of the motion for new trial complaining that the court failed to instruct the jury on the controlling issue in the case is without merit.
DECIDED APRIL 4, 1962 — REHEARING DENIED APRIL 20, 1962.
The plaintiffs (defendants in error) in separate actions sued the defendant (plaintiff in error in each case) on an automobile liability insurance policy issued by the defendant to B. D. Craig, Sr. (hereinafter called the insured). The plaintiffs had obtained default judgments against the insured for injuries they received when an automobile driven by the insured's son collided with an automobile driven by the plaintiff Rogers, and in which the plaintiff Cooper was a passenger. By their petitions and evidence offered at the trial the plaintiffs sought to establish that the defendant was liable on the judgments they held because, at the time of the collision, the insured was covered by its policy, under these facts alleged in each petition: The automobile described in the policy was a 1954 Ford owned by the insured. The automobile driven by the insured's son at the time of the collision was a 1949 Pontiac, which was being used as a "temporary substitute automobile" while the Ford was being repaired, and was therefore covered under the terms of the policy. The policy obligated the defendant to pay damages caused by accident arising out of the use of the "automobile," and defined "automobile" to include a "temporary substitute automobile . . . not owned by the named insured while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction." Both the insured and the attorney for the plaintiff notified the defendant of the suit filed by plaintiff against the insured, and the defendant's representative notified plaintiff's attorney that the defendant would not contest the action because its policy did not afford coverage.
The defendant sought to establish that an exclusion in the policy applied at the time of the collision. The policy specifically excluded coverage "to a non-owned automobile (a) registered in the name of the named insured or a relative, (b) hired by or furnished to the named insured or a relative for regular use." The policy defined "relative" as "a relative of the named insured who is a resident of the same household." The defendant alleged and offered evidence that before the collision the insured had delivered the Ford to another, the person from whom he had purchased it, to be sold, and never thereafter regained possession of it; that the Pontiac was the property of a son of the insured who was in the armed services but domiciled at the insured's home; that the Pontiac was left at the insured's home for the unrestricted use and benefit of the family. Defendant pleaded the further defense that the insured had not complied with the conditions of the policy requiring him to forward "to the company every demand, notice, summons or other process received by him."
The cases were consolidated for trial and resulted in verdicts for the plaintiffs. The defendant made a motion for new trial in each case on the general and several special grounds. The trial court denied the motions for new trial, and the defendant assigns error in each case, but has abandoned the assignments of error on the general grounds. Our opinion applies to both cases.
1. In special ground 1, the defendant complains of the admission in evidence of the petition upon which the plaintiff obtained default judgment against the insured, on the grounds that "the petitions and contents thereof" were prejudicial to him and not pertinent to the issues in the present case — the defendant's liability for the judgment under its insurance contract. The plaintiff's petition in the present case contains allegations that he filed suit against the insured on a certain date and obtained judgment by default on a certain date; and that plaintiff had notified the defendant of the pending suit against the insured, which the defendant did not defend. By its answer in the present suit, the defendant denied and required strict proof of these allegations. The record shows that the plaintiff offered at the trial to stipulate when the petition was served by the sheriff on the insured, in lieu of introducing the pleadings, and the defendant did not agree to this. Under these circumstances we think, even though the judgment against the insured was in evidence, that the trial court did not err in admitting the petition, including the sheriff's return of service, as proof of when the petition was served and on the question of notice to the defendant. When a document is offered in evidence, "part of which is admissible and part inadmissible, and the objection is to the evidence as a whole, it is not error to admit it all." Finney v. Blalock, 208 Ga. 218 ( 65 S.E.2d 920); City of Atlanta v. Feeney, 42 Ga. App. 135, 136 ( 155 S.E. 370); Kansas City Life Ins. Co. v. Williams, 62 Ga. App. 707 ( 9 S.E.2d 680); American Cotton College v. Atlanta Newspaper Union, 138 Ga. 147, 148 ( 74 S.E. 1084).
The decision in Lewis v. Lewis, 210 Ga. 330 ( 80 S.E.2d 312) affirmed the exclusion of pleadings in another case which contained no allegations that were relevant to the issues in the case on trial; but there the allegations as to filing and pendency of the former suit had been admitted by the opposing party in the case on trial. We are not inconsistent with the Lewis case in holding that the trial court's admission of the petition was not error.
2. In ground 2 the defendant contends that the court prejudiced its defense by restricting its cross-examination of a witness for the plaintiff. The record shows that the court did sustain plaintiff's objection to a question asked the witness, as not being relevant, but that thereafter the plaintiff withdrew his objection to the questions which the defendant stated he wished to propound to the witness, and that the court recognized that the plaintiff's objections were withdrawn. It appears then that the defendant could have continued his cross-examination of the witness had he so desired. Therefore, even if we assume that the plaintiff's initial objection was improperly sustained, the witness having been restored for the defendant's proposed questioning, the defendant cannot successfully assign error on the sustaining of the objection. See Denson v. State, 209 Ga. 355 ( 72 S.E.2d 725); 98 CJS 124, § 371.
The court did not err in overruling ground 2.
3. In ground 3 the defendant complains that the court "erred in restricting defendant's cross-examination of Herman Cooper, witness for the plaintiff, in that on cross-examination of Cooper defendant attempted to lay the foundation to show contradictory statements made by the witness." The defendant cross-examined Mr. Cooper and questioned him about a statement in writing, upon which Mr. Cooper identified his signature. The court sustained an objection to admission of the statement in evidence at that time on the ground that it was not properly identified. Later a witness for the defendant, who had taken and transcribed the statement from Mr. Cooper, read the statement to the jury, and it was introduced in evidence without objection. Thereafter the court denied defendant's motion to recall Mr. Cooper.
The defendant contends that he was denied the right given him by Code § 38-1803 to recall a witness for the purpose of laying the foundation and impeaching the witness, and also of his right to a thorough and sifting cross-examination of the witness. The foundation that the law requires to be laid before contradictory statements may be proved to impeach a witness, is for the purpose of giving the witness "the opportunity of correcting and explaining his evidence." Estill v. Citizens c. Bank, 153 Ga. 618, 627 ( 113 S.E. 552); Taylor v. State, 110 Ga. 150, 157 ( 35 S.E. 161); Greene, The Georgia Law of Evidence, 340, § 136. Here the contradictory statement was proved, whether or not the right to have a foundation laid as provided by statute was fully accorded the witness. The absence of foundation could not have harmed the defendant, as the introduction of evidence offered for impeachment was accomplished without objection. This distinguishes the present case from Harden v. Central of Ga. R. Co., 21 Ga. App. 218 ( 94 S.E. 263), cited by defendant. "When the witness of one party has been examined, by both sides, and has left the stand, the other party has no right to recall him that he may cross-examine him upon a fact stated." Gavan v. Ellsworth, 45 Ga. 283. "The question of allowing a witness to be recalled to the stand for further examination at the instance of either party is always one within the discretion of the presiding judge, which this court will never control unless manifestly abused." Dixon v. State, 116 Ga. 186 (5) ( 42 S.E. 357). "No exercise of this discretion, unless palpably unfair and prejudicial to the complaining party, will ever be declared by this court to be reversible error." Maddox v. City of Eatonton, 8 Ga. App. 817 ( 70 S.E. 214).
The court's ruling, refusing to recall the witness, did not have the effect of unduly abridging defendant's right to subject the witness to a thorough and sifting cross-examination. Gavan v. Ellsworth, 45 Ga. 283, supra; Putnam v. Taylor, 21 Ga. App. 537 ( 94 S.E. 862).
The court did not err in overruling ground 3.
4. In grounds 4, 5 and 6 the defendant complains of certain portions of the charge of the court which concerned the plaintiff's right to recover in an action against the insurer after obtaining judgment against the insured, provided all of the other terms of the policy are complied with; and instructed that a judgment against the insured, as to the issues which are litigated therein, is binding on the insurer when it has had timely notice of the action. The defendant contends that these instructions amounted to instructions that the plaintiff was entitled to a verdict against the defendant, and had the effect of eliminating from the jury's consideration the defenses claimed by defendant against liability for the judgment. We do not think these instructions had this harmful effect, especially when considered with the rest of the charge. The court instructed the jury that the question they were to determine was whether the plaintiff was entitled to recover against the insurer; gave specific instructions relating to facts constituting defenses and issues concerning the automobile described in the policy, and the automobile being driven at the time of the collision which resulted in the judgment; and instructed that the courts cannot extend or enlarge the contract of insurance but must carry out its true intent. These grounds do not show error, and the court did not err in overruling them.
5. Ground 7 complains that the court refused to charge a written request. The defendant's assignment of error contends that the charge as requested "would have materially aided the jury and was not covered by the court in any other portion of its charge"; and that, in declining to give the charge, the court effectively removed one of its defenses from the consideration of the jury. The substance of the charge requested was, in fact, covered elsewhere in the charge.
Generally it is not necessary that the court "should, on requests to charge, repeat and reiterate in different forms or modes of expression what has been already sufficiently given." Slaughter v. Heath, 127 Ga. 747 ( 57 S.E. 69, 27 LRA (NS) 1). While the Supreme Court has held "that a requested charge must be given in the language in which the request is submitted," an assignment of error on the ground that "the request was not covered by the general charge" is without merit when the request is covered by instructions in substantially the language requested. Griffith v. Newman, 217 Ga. 533, 540 ( 123 S.E.2d 723). When there is no assignment of error complaining that the request was not given in the exact language of the request, and the request is substantially covered by the charge given by the court, no reversible error is shown. Dillard v. Jackson's Atlanta Ready Mix Concrete Co., Inc., 105 Ga. App. 607. In the present case, assuming that the requested charge was legally correct, the trial court did not err in overruling special ground 7 of the motion for new trial, complaining that the request was not covered by the court's charge.
6. The court did not err in overruling ground 8, which complains that the court failed to instruct the jury on the only issue to be decided — whether or not the contract insuring a 1954 Ford automobile extended coverage to the 1949 Pontiac involved in the collision out of which judgments against the insured arose. Several paragraphs of the court's charge dealt with this issue.
Judgment affirmed. Felton, C. J., and Bell, J., concur.