Atlanta Gas Light Co. v. Redding

• Decision Date: 07 November 1988
• Docket Number: No. 76734,76734
• Citation: 375 S.E.2d 142,189 Ga.App. 190
• Parties: ATLANTA GAS LIGHT COMPANY v. REDDING.
• Court: Georgia Court of Appeals

Page 142

375 S.E.2d 142

189 Ga.App. 190

ATLANTA GAS LIGHT COMPANY v. REDDING.

No. 76734.

Court of Appeals of Georgia.

Nov. 7, 1988.

Rogers, Magruder, Hoyt, Sumner & Brinson, J. Clinton Sumner, Jr., Rome, for appellant.

Gammon & Anderson, Joseph N. Anderson, Cedartown, for appellee.

BEASLEY, Judge.

A jury awarded $75,000 to Redding in her suit for damages resulting from an automobile collision between her Blazer and a truck owned by Atlanta Gas Light Company and driven by one of its employees. The company enumerates six errors in its appeal from the judgment.

1. The first two enumerations assert the trial court erred in permitting Redding to testify 1) as to the gross sales and 2) as to the gross profits of a business incorporated in 1984, because only the plaintiff's personal loss of income was in issue. The company made continuing objections to Redding's testimony in this regard, but it voiced no objections when 1983 income tax returns on her sole proprietorship and 1984 and 1985 tax returns on her wholly-owned corporation were introduced. These documents contained the same information to which objection was interposed. Error, if any, in admitting the testimony was rendered harmless by the admission, without objection, of evidence of the same nature. Wilson v. Bonner, 166 Ga.App. 9, 17(5), 303 S.E.2d 134 (1983).

The company urges at great length in its brief that the evidence was inadmissible because there was insufficient evidence of lost profits to sustain a jury finding for those damages. However, this is not encompassed within the framework of the enumerations of error and in addition was not raised as a ground for rejecting the evidence. Hurston v. Ga. Farm Bureau Mut. Ins. Co., 148 Ga.App. 324, 326(2), 250 S.E.2d 886 (1978); Cox v. City of Lawrenceville, 168 Ga.App. 119, 120(1), 308 S.E.2d 224 (1983).

2. The third enumeration is that the court erred by charging the jury that it could award Redding damages for her loss of future earnings, in the absence of any competent evidence. In its initial brief the company argued this ground only with regard to the first two enumerations of error and did not support its claim of error by specific reference to the record or transcript. In its supplemental brief, although the third ground is argued in more detail, still no accurate citation to the transcript is found. Due to this failure to comply with Rule 15(c)(3)(i), the enumeration of error will not be considered. International Brotherhood v. Briscoe, 143 Ga.App. 417, 426(4), 239 S.E.2d 38 (1977); Woodson v. Burton, 151 Ga.App. 401(1), 259 S.E.2d 657 (1979).

3. The trial court instructed the jury that the correct measure for damages to the Blazer was the difference between its fair market value just before and just after the damage. Although conceding that the charge stated a correct proposition of law, the company argues that it was unsupported by any evidence.

The trial court also instructed the jury that the loss might be established by showing the reasonable costs of repairs. However, the company contends the evidence showed that it had paid Redding for the costs of repairs, but there was no evidence that such costs did not exceed the value of the vehicle before the damage. Redding has failed to point out, see Rule 15(c)(3)(iv), and we have been unable to find, where any evidence was introduced regarding the value of the vehicle before the collision or afterwards.

An instruction is erroneous which, although correct as an abstract principle of law, is not supported by evidence. Willard v. Willard, 221 Ga. 2(2), 142 S.E.2d 849 (1965). Thus, the instruction on damages which was not authorized by the evidence was reversible error. Bussey v. Thomas, 123 Ga.App. 653, 654(2), 182 S.E.2d 124 (1971); Owens v. White, 103 Ga.App. 459(1), 119 S.E.2d 581 (1961).

4. The fifth enumeration is that it was error for the court to refuse the company's request for a special verdict so as to apportion the verdict between general damages, with separate items for property damage, loss of earnings and income, and medical expenses.

"The submission of a special verdict [OCGA § 9-11-49] is within the discretion of the trial court; absent an abuse of that discretion, the court's choice will not be overturned." News Pub. Co. v. DeBerry, 171 Ga.App. 787, 790(3), 321 S.E.2d 112 (1984). The order which followed the pretrial conference provided for a general verdict form. Such order controlled unless modified to prevent manifest injustice. OCGA § 9-11-16(b). Although the company requested special verdicts after the evidence was closed, it had never sought amendment of the pretrial order and thus was bound by it. Gilbert v. Meason, 145 Ga.App. 662(1), 244 S.E.2d 601 (1978); Hawkins v....