Opinion
43222.
SUBMITTED NOVEMBER 9, 1967.
DECIDED DECEMBER 5, 1967.
Action for damages. Lincoln Superior Court. Before Judge Stevens.
Walton Hardin, for appellants.
Fulcher, Fulcher, Hagler, Harper Reed, William C. Reed, Ben B. Ross, for appellee.
1. The trial judge properly excluded evidence that the plaintiff received reimbursement from his insurance company since such fact constituted no defense to the plaintiff's claim for damages to his vehicle.
2. Where no objection is made to a charge before the jury returned its verdict, absent substantial error which was harmful as a matter of law, an enumeration complaining of the charge presents nothing for review.
SUBMITTED NOVEMBER 9, 1967 — DECIDED DECEMBER 5, 1967.
James C. Lee brought an action for damages against H. F. Partridge, t/a Partridge Lumber Company, and Douglas W. Moon in the Lincoln Superior Court. The petition alleged that the plaintiff's truck, while being operated on Highway 47 in Lincoln County, collided with a truck owned by the defendant Partridge, while being operated by his agent and servant, the defendant Moon; that as a result of this collision the plaintiff suffered designated personal injuries and damages to his truck in a specified amount; that the proximate cause of the collision and the resulting injuries and damages to the plaintiff was the negligence of the defendant Moon in the following particulars: operating the vehicle to the left of the center line, turning to the left without giving an appropriate signal, failing to yield the right of way and failing to keep a diligent lookout ahead. The defendants answered denying the material allegations of the petition, and the defendant Partridge filed a counter claim in which he sought recovery from the plaintiff for damages to his truck. The case proceeded to trial resulting in a verdict for the plaintiff and the defendants filed a motion for a new trial. The motion for new trial was overruled and the defendants now appeal to this court.
1. This appeal raises two principal questions which will be considered in the order in which they were argued. The first question presented by the appeal is whether the trial court committed error in refusing to allow the defendant to introduce into evidence a proof of loss and loan receipt and a letter from an insurance company, and to cross examine the plaintiff and defendant concerning these documents. It was argued that they would show the plaintiff no longer had an interest in the car for which he sought damages and that the plaintiff had settled for an amount less than that sought in the instant suit.
This court has held that the fact of insurance is not before the court in an action for damages. Harper Warehouse v. Henry Chanin Corp., 102 Ga. App. 489, 493 (4, 5) ( 116 S.E.2d 641). Moreover, whether the plaintiff might have received payment for his loss from a third party is not relevant in a suit against a tortfeasor. Thompson v. Milam, 115 Ga. App. 396 ( 154 S.E.2d 721). As held in Koon v. Atlantic C. L. R. Co., 90 Ga. App. 877, 879 ( 84 S.E.2d 703): "The fact that the plaintiff testified that she had paid for the repairs to the automobile in the amount of $925.60, but had received reimbursement therefor from her insurance company, constituted no defense to the plaintiff's claim for damages to her automobile. The policy of insurance was not in evidence, and there was no evidence of the terms or conditions under which the plaintiff received payment from the insurance company."
Here, in addition, the record reveals that the insured plaintiff received money under a loan receipt and had not transferred his interest in the car. Hence, the trial judge did not err in excluding the evidence.
2. The defendant argues that the court failed to give a fair and complete charge with respect to its contentions in that the court emphasized the plaintiff's contentions at the expense of the defendant. It is urged that the court devoted ninety percent of its charge to the plaintiff's contentions.
The appellant made no objection to the charge at the time it was offered. We have examined the charge and find no substantial error which was harmful as a matter of law within the meaning of Code Ann. § 70-207 (Ga. L. 1965, pp. 18, 31; Ga. L. 1966, pp. 493, 498). Therefore, the rule is applicable that where no objection to the charge is made before the jury returned its verdict, the enumeration of error will not be considered. Nathan v. Duncan, 113 Ga. App. 630, 638 ( 149 S.E.2d 383); Gaines v. City of Gainesville, 115 Ga. App. 220, 222 ( 154 S.E.2d 280); Foskey v. State, 116 Ga. App. 334, 335 (2) ( 157 S.E.2d 314).
Judgment affirmed. Jordan, P. J., and Deen, J., concur.