Opinion
37446.
DECIDED MARCH 9, 1959.
Money had and received, etc. Fulton Civil Court. Before Judge Parker. September 19, 1958.
John L. Westmoreland, John L. Westmoreland, Jr., Claude R. Ross, for plaintiffs in error.
W. R. Bentley, J. Walter LeCraw, contra.
1. Grounds of a motion for new trial which have been expressly abandoned, or which contain no assignment of error upon any ruling made, or action taken, by the trial court, present no question for adjudication.
2. Where, on a motion for a mistrial, based upon the ground that no instruction by the court or rebuke of the witness could possibly eradicate the prejudicial effect of an improper and prejudicial remark made by the witness in the presence of the jury, the movant acquiesces in the trial court's refusal to grant such motion upon that ground, as evidenced by the movant's subsequent request that the court instruct the jury to disregard the remark and that the court rebuke the witness in the presence of the jury, which the court does, such motion for mistrial is waived, and a ground of a motion for new trial, alleging error on the trial court's refusal to grant a mistrial, based on grounds not urged before verdict, presents no question for adjudication.
3. Evidence tending to establish a fact alleged in a petition is admissible whether it tends to establish the plaintiff's right of action or not; and, being admissible for any purpose, its introduction in evidence may not form the basis of a motion for mistrial, nor is the trial court required to restrict the purposes for which it is admissible in its charge to the jury in the absence of a request to so charge.
4. The evidence authorized the verdict.
DECIDED MARCH 9, 1959.
In an action brought on June 17, 1957, in the Civil Court of Fulton County to recover the sum of $4,000, together with interest from October 19, 1956, and $1,000 as expenses of litigation, Mrs. Paul A. Creedon sued a partnership composed of Messrs. H. A. Whitaker, Senior and Junior. In the first of two counts, the gravamen of her action is one in assumpsit for money had and received based upon the theory that she paid $4,000 to the partnership on October 19, 1956, as "security" in order to effect the release of her husband from jail, where he had been incarcerated on the night of October 18, 1956, on a charge of larceny from the Whitaker partnership of more than $12,000, and that since the case upon which her husband had been arrested had been terminated no reason existed for the Whitaker partnership to retain the $4,000, and, on demand, the partnership had refused to return the $4,000 to her.
In the second of the two counts, Mrs. Creedon seeks recovery of the same sums enumerated in Count I. Count II, however, is predicated upon the statutory prohibitions of a wife's payment of her husband's debts or acting as his surety.
A more detailed account of the pleadings in the case is to be found in Whitaker v. Creedon, 97 Ga. App. 320 ( 103 S.E.2d 175), where on the first appearance of the case in this court, it was established that each count of Mrs. Creedon's petition stated a cause of action.
After a somewhat protracted and prolix trial the jury returned a verdict on May 15, 1958, for the plaintiff in the amount of $2,000 plus $132.26 as interest. Expenses of litigation were not awarded, nor did the jury designate upon which of the two counts its verdict was based.
The defendant moved for a new trial on the customary general grounds and 6 special grounds numbered seriatim "4" through "9".
Special ground 1 of the motion for new trial was expressly abandoned in the brief of counsel for the defendants.
Special ground 2 is predicated upon a motion for mistrial as the result of a statement made by Mrs. Creedon in the presence of the jury, while on cross-examination, in which she, in an unresponsive reply to a question posed by counsel for the defendants, characterized the elder Mr. Whitaker and his former attorney, as "two men disguised as thieves" who came into her house and stole $4,000 from her. Counsel's original motion for mistrial was founded upon the thesis that Mrs. Creedon's remark made it impossible for the defendant to obtain a fair trial; that such remark could not be eradicated from the minds of the jurors by an instruction from the court to disregard the epithet, as such an instruction by the court would only serve to accentuate the harm done. On the court's expressed disinclination to grant the motion for mistrial after the trial had been in progress for two days and the court's statement that it would "try to get around declaring a mistrial," the motion was denied. Counsel for the defendant thereupon moved the court to instruct the jury not to consider Mrs. Creedon's remark and to reprimand Mrs. Creedon for making the statement. The court complied by so instructing the jury and reprimanding Mrs. Creedon for the impropriety of her remark.
In special grounds 3, 4, and 5, error is assigned on the court's permitting counsel for the plaintiff to introduce the verdict of the jury finding Mrs. Creedon's husband "not guilty" of the offense of larceny from the defendants; upon the court's failure to instruct the jury that the verdict was admitted only for the limited purpose of establishing the termination of the criminal case against Mrs. Creedon's husband; and upon the court's refusal to grant a mistrial based upon the alleged erroneous introduction of such verdict in evidence.
In special ground 6 counsel recounts an alleged suppression by the plaintiff of certain "check stubs" from evidence, but this ground contains no assignment of error upon any ruling of the court upon the matter.
The motion for new trial was denied and the defendants have in due course brought the case here for review.
1. Where, on an appeal to this court in which error is assigned on the denial of a motion for new trial, counsel for the appellant expressly abandons a special ground of such motion — as was done by counsel with respect to special ground 1 — or, where, in a special ground of such motion, counsel merely relates certain facts without assigning any ruling of the trial court as error — as was the case in special ground 6 — such grounds present no questions for adjudication by this court. Wilcher v. State, 87 Ga. App. 93 ( 73 S.E.2d 57); Citizens Banking Co. v. Paris, 119 Ga. 517, 518 ( 46 S.E. 638).
2. Having acquiesced in the trial court's refusal to grant a mistrial on his motion, founded on the theory that the plaintiff's improper characterization of one of the defendants and the defendant's former attorney as "two men disguised as thieves" made it impossible for the defendants to obtain a fair trial as any effort to eradicate the impropriety would only serve to accentuate the plaintiff's improper description of that defendant and the former attorney, counsel for the defendants moved the court to instruct the jury not to consider the testimony and to reprimand the plaintiff for making such a statement in the presence of the jury. With this latter request and motion the court complied in these words: "Gentlemen of the jury, this last statement that was made in your presence by the witness, a voluntary statement not in response to any question asked her by counsel, was highly improper. It has nothing to do with this case. It was improper for her to make such a statement in your presence or in the presence of the court. I publicly reprimand her for making such a statement and direct that you disabuse your minds of the statement and eliminate it from your mind completely as if the statement had never been made in your presence. Be very careful, young lady, in the future, you only answer questions and not volunteer your own opinions about things." The error assigned in this ground of the motion for a new trial (special ground 2) is that "it is improbable that the court's instructions to the jury to disregard said remark and the court's rebuke of plaintiff eradicated the effect of said remark on the jury. Said remark affected the jury adversely towards movants and the failure of the court to grant movants' motion for mistrial was error, harmful and prejudicial to movants and requires the grant of a new trial." It is not made to appear in this ground that, following the movants' acquiescence in the trial court's refusal to grant the mistrial originally urged, which constituted a waiver of that motion, any motion was urged, or denied by the court, on the ground that the instruction and rebuke requested by movants, and given by the court, had failed to eradicate the effect of the improper remark by the plaintiff. This ground, consequently, presents no question for decision, having never been urged before, or ruled on by, the trial court. Mewborn v. Weitzer, 15 Ga. App. 668 (2) ( 84 S.E. 141).
3. (a) Under the state of the pleadings in Count 1 of the petition as they existed at the time of the trial, it was material for the plaintiff to establish that the criminal proceeding against her husband had terminated. It is alleged in that count that she deposited the money with the defendants as "security" to get her husband out of jail and that "there is no longer any need for the said money to remain in the hands of defendants, the complaint and case upon which Paul A. Creedon was arrested having been terminated." No more effective procedure could have been pursued by the plaintiff in establishing the termination of the criminal case against her husband than the introduction of the certified copy of the verdict in that case in which the jury found him not guilty. Not only was this evidence admissible to prove the fact of termination of the case as alleged in the petition ( Atlantic Coast Line R. Co. v. Anderson, 35 Ga. App. 292 (2) 133 S.E. 63, and cit.); the evidence was admissible as tending to establish the plaintiff's right to have the money returned to her under the theory upon which Count 1 is predicated.
(b) As the verdict in the criminal case against the plaintiff's husband was clearly admissible, its introduction in evidence can constitute no basis for the grant of a mistrial.
(c) "Where evidence is admissible for one purpose it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury." Willis Lumber Co. v. Roddenbery, 88 Ga. App. 352, 358 ( 77 S.E.2d 110), and cit. From this ground of the motion for a new trial, it appears that at the time the verdict in the criminal case against the plaintiff's husband was sought to be introduced, the court, in the presence of the jury, overruled the defendant's objection to the evidence in these words: "All right, I am of the opinion that it is admissible, showing the termination of the — proving the allegations made in the petition. I admit it." If counsel for the defendants wished the court to circumscribe and restrict the purpose for which the evidence was introduced, a timely request to so charge the jury should have been presented.
There is no merit in special grounds 3, 4 or 5 of the motion for new trial.
4. The jury did not specify upon which count of the petition the verdict was rendered, and, consequently the verdict is not subject to attack if authorized by the evidence under either of the two counts. Williams v. Smith, 71 Ga. App. 632 ( 31 S.E.2d 873). It was admitted that the plaintiff paid over to the defendants the sum of $4,000, but the evidence as to the terms under which the money was paid was in sharp conflict, and while the major controversy involved the question of whether the money paid to the defendants belonged to the plaintiff or to her husband, there was sufficient evidence to authorize the jury to find that a least half the money belonged to the plaintiff and that she either paid over the money as "security" to effect her husband's release from jail or that the money was paid to the defendants on a debt owed by her husband to the defendants. The general grounds of the motion for new trial are without merit.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.