Opinion
38575.
DECIDED FEBRUARY 27, 1961.
Action for damages. Montgomery Superior Court. Before Judge Whaley.
Sharpe Sharpe, T. Malone Sharpe, T. Ross Sharpe, for plaintiff in error.
J. C. Bivins, Gordon Knox, Jr., J. H. Highsmith, contra.
1. "A witness who satisfactorily shows that he had an opportunity to observe and did observe a person's condition may testify, as a statement of fact actually observed by him, whether such person was under the influence of intoxicating liquor." Grier v. State, 72 Ga. App. 633, 634 (2) ( 34 S.E.2d 642).
2. "Where testimony is provisionally admitted, it is the duty of counsel to later renew his objection to the admission of such evidence, if he desires to have it excluded, and upon his failure to do so, reversible error is not shown." Bryan v. Barnett, 205 Ga. 94 (3) ( 52 S.E.2d 613).
3. A requested charge which is not adjusted to the issues nor applicable to the facts of the case may be refused.
4. "A charge should be given substantially in the language requested; nevertheless, if the charge on the subject requested is fully and fairly given, it is not error that the exact language of the request is not used." Sims v. State, 84 Ga. App. 753, 756 ( 67 S.E.2d 254).
DECIDED FEBRUARY 27, 1961.
E. L. Smith filed an action for damages in the Superior Court of Montgomery County against Robert Earl Fountain as a result of an automobile collision. When the case was tried, a verdict was returned in favor of the plaintiff in the amount of $9,995.
There was evidence adduced on the trial showing the following facts: On the afternoon of the collision the defendant parked his automobile near the Montgomery County jail. The defendant and Deputy Sheriff Clyde Carter engaged in a conversation. The deputy sheriff testified that at that time he observed a bottle of whisky in the seat of the defendant's automobile; that he was of the opinion that the defendant had been drinking, as well as a woman who was sitting in the defendant's automobile. Thereafter, the defendant got into his automobile and departed at a rapid speed causing the tires of his automobile to "squall". The defendant returned and circled the square adjacent to the jail at a rapid speed. On hearing the commotion, the Sheriff of Montgomery County, who is the plaintiff in this suit, came out of the jail, and he and Deputy Sheriff Carter got into the sheriff's automobile and proceeded in pursuit of the defendant with the deputy driving; when they came in sight of the defendant's automobile, the defendant accelerated his automobile. Thereafter, the pursuit continued at speeds in excess of 100 miles per hour. The officers testified that the sheriff's vehicle was equipped with a siren and a red light, and each was used during the chase; that on one occasion the sheriff's vehicle was abreast of the defendant's automobile with the siren open and horn blowing in an attempt to stop the defendant. The defendant turned his vehicle to the left causing the sheriff and his deputy to drop back; that two more attempts were made to bring the sheriff's automobile alongside the defendant's vehicle, and each time the defendant turned to the left of the road, and the officers then decided to keep in sight of the defendant's automobile and radio ahead for road blocks.
As the chase continued through the city limits of Hazelhurst and onto U.S. Highway 341, the defendant attempted to pass an automobile ahead of him while another automobile was approaching from the opposite direction; that the defendant's automobile struck the automobile he was attempting to pass and also struck the left rear side of the approaching vehicle, which threw it into the line of traffic of the sheriff's automobile, and the sheriff's automobile collided with such vehicle resulting in injury being inflicted upon the sheriff.
The defendant left the scene of the occurrence and traveled a considerable distance and turned off the main road, stopping some distance therefrom where he was found by other officers, and he and his companion were taken to jail by members of the State Highway Patrol. These officers testified that the defendant appeared to be under the influence of intoxicants.
The defendant introduced witnesses who were either near the scene of the accident or traveling along the route, who testified that they neither heard a siren nor saw any markings upon the sheriff's automobile showing it to be a vehicle used in connection with law enforcement. The defendant testified that he knew an automobile was following him, but that he did not know it was the sheriff's; that he did not attempt to force the sheriff's vehicle off the road; that when the collision occurred, he was attempting to pass an automobile in order to get away from the pursuing vehicle; that he, at no time, was intoxicated; that he, at no time in the afternoon, heard a siren nor saw a red light.
The defendant produced other witnesses, who had been with the defendant earlier in the afternoon, who testified that he had not been drinking at the time they saw him.
It is undisputed that no markings were on the sheriff's automobile to identify it as a vehicle used in connection with law enforcement.
After the rendition of the verdict and judgment entered thereon, the defendant filed a motion for a new trial and later amended it by adding several special grounds. To the overruling of the motion for a new trial, as amended, the defendant excepts and assigns same as error.
1. Special grounds 6, 7, 8, 9, 10 and 11 of the motion for a new trial, as amended, assign as error the admission of testimony of various officers relating to whether or not the defendant was under the influence of intoxicating liquor at or near the time of the collision. Before such evidence was admitted, a proper foundation had been laid showing facts by which the witnesses reached the opinion that the defendant was under the influence of intoxicating liquor. The witnesses then testified that the defendant had been drinking, or appeared to have been drinking.
This court has held that a witness may testify directly as to the fact of whether a person is intoxicated. The reason usually given is that the exact condition of an intoxicated person cannot be depicted to the jury precisely as it appeared to the witness. Hinson v. State, 88 Ga. App. 318 ( 77 S.E.2d 63); Grier v. State, 72 Ga. App. 633 ( 34 S.E.2d 642); Donley v. State, 72 Ga. App. 429 ( 33 S.E.2d 925). Furthermore, in the instant case the record reveals that the witnesses did testify as to facts on which they based their opinion that the defendant was intoxicated, after showing an opportunity of observing him. Code § 38-1708; Central Railroad v. Senn, 73 Ga. 705. Such testimony is not expert opinion testimony, but testimony as to an ultimate fact. Andrews v. State, 102 Ga. App. 423 ( 116 S.E.2d 345); Hill v. Rosser, 102 Ga. App. 776 ( 117 S.E.2d 889). These special grounds are without merit. Under the above ruling the charge assigned as error in special ground 12 was applicable and not erroneous. "In the absence of a timely written request, the mere fact that opinion evidence was introduced does not require an instruction as to the weight of such evidence." Fort v. State, 31 Ga. App. 525 (1) ( 121 S.E. 128); Davis v. State, 205 Ga. 248 ( 53 S.E.2d 545). Ground 2 of the amended motion for a new trial is without merit.
2. Special grounds 1 and 5 assign as error certain testimony of the plaintiff which was admitted conditionally over the objection of the defendant. At the time the trial judge ruled that plaintiff's counsel could proceed further with questions to ascertain if the testimony was admissible, he stated, "If he [plaintiff's counsel] connects it, I will let it stay in, and if he does not, I will exclude it." No further motion to exclude the testimony appears in the record.
"Where the trial court admits conditionally, over objections, evidence offered by the plaintiff, it is the duty of counsel objecting to the admission of such evidence to invoke a later and final ruling of the court; and the failure of the court to exclude the evidence admitted provisionally on its own motion, where the party making the objections does not renew them, does not constitute reversible error. Thomas v. State, 129 Ga. 419 (2) ( 59 S.E. 246); Hailey v. McMullan, 144 Ga. 147 (3) ( 86 S.E. 315); Bryan v. Barnett, 205 Ga. 94 (3) ( 52 S.E.2d 613). Special grounds 1, 2, 3, and 4 complain that the court erred in admitting certain documentary evidence over stated objections of the defendants. These grounds show that in each instance the court admitted the evidence conditionally, and the record does not show that the defendants' counsel made any further motion to exclude the evidence, or that the court ever made any final ruling as to its admissibility. These grounds disclose no reversible error." Milligan v. Milligan, 209 Ga. 14, 15 (1) ( 70 S.E.2d 459). Connor v. Rainwater, 200 Ga. 866 (2) ( 38 S.E.2d 805); Augusta Roofing c. Works v. Clemmons, 97 Ga. App. 576 ( 103 S.E.2d 583). Special grounds 1 and 5 of the motion for a new trial are without merit.
3. The defendant complains that the court erred in refusing to charge a written request, viz., that the failure of the sheriff to have his automobile distinctly marked on each side and the back, as provided by Code Ann. § 68-1707, was negligence per se. It is contended that the defendant did not know who was pursuing him because such car was unmarked. There is no causal connection between the plaintiff's failure to have his automobile properly marked and the collision. See Central of Georgia Ry. Co. v. Moore, 149 Ga. 581 ( 101 S.E. 668); Georgia Power Co. v. Jones, 54 Ga. App. 578 ( 188 S.E. 566).
The record shows questions propounded to the defendant and his answers, as follows: "Q. Now, is it anything unusual for a car to come along behind you? Isn't that ordinary in traffic for cars to follow along behind you? Don't they follow along behind you for a period of many miles at times? A. Oh yes. There are a lot of cars that get in behind you and follow along. Q. And they do that over miles don't they? A. Sure they do. Q. But this particular car you decided you had better outrun it didn't you? A. Well, it did come on up to that, yes sir. Q. I see. You decided that you had better outrun it. You didn't have any guilty conscience about anything did you? A. Well, I don't think I did, no sir. Q. There wasn't any reason for you to think you ought to have to outrun it, that anybody would be after you. You hadn't done anything had you? A. Well, I didn't think I had anyway. Q. That is right. You had no reason to think anybody was following you or trying to get you or bother you did you? A. I didn't think anybody had any reason to. Q. But suddenly you decided this car was after you and you were going to try to outrun it. That is right isn't it? A. Well, that is what it wound up being."
By the above testimony of the defendant, he negates any theory under which this charge might be applicable. The charge was not applicable and was properly refused.
4. "A charge should be given substantially in the language requested; nevertheless, if the charge on the subject requested is fully and fairly given, it is not error that the exact language of the request is not used." Sims v. State, 84 Ga. App. 753, 756 ( 67 S.E.2d 254). Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 ( 54 S.E. 110). Special grounds 14, 15, 16, 17, 19, 21, 22, 23, 24, 25 and 26 of the motion for a new trial are not meritorious.
5. The evidence supports the verdict, and the charge was full and fair. No error is shown by any of the special grounds of the motion for a new trial.
Judgment affirmed. Townsend, P. J., Carlisle and Jordan, JJ., concur.