Braswell v. Owen of Georgia, Inc., 47795

• Decision Date: 16 February 1973
• Docket Number: No. 47795,No. 3,47795,3
• Citation: 197 S.E.2d 463,128 Ga.App. 528
• Parties: Edward BRASWELL v. OWEN OF GEORGIA, INC
• Court: Georgia Court of Appeals

Page 463

197 S.E.2d 463

128 Ga.App. 528

Edward BRASWELL v. OWEN OF GEORGIA, INC.

No. 47795.

Court of Appeals of Georgia, Division No. 3.

Feb. 16, 1973.

Rehearing Denied March 16, 1973.

Joseph H. Briley, Gray, Robert F. Higgins, Macon, for appellant.

Lokey & Bowden, Glenn Frick, Atlanta, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

Braswell sued Owen of Georgia, Inc., to recover damages for personal injuries he sustained at approximately 6:30 a.m., January 23, 1970, when the defendant's truck, loaded with steel, struck the rear of the plaintiff's employer's truck, which the plaintiff had been driving and which had stalled in the two outside lanes of a three-lane, icy bridge on Interstate Highway 16 in Macon, knocking the plaintiff's truck into the plaintiff, who was checking his load of chickens and the four-way, emergency blinker lights on the truck when the collision occurred. The plaintiff appeals from a verdict and judgment for the defendant and from the overruling of his motion for a new trial as amended. Held:

1. The trial judge did not err, as is contended in enumerated errors 1, 2, and 3, in refusing to admit in evidence testimony of expert witness Lucas concerning the coefficient of friction of rubber on melting ice, since the evidence was that the ice was in the initial stage of forming, not melting. Even an expert witness is not permitted to give his opinion, in answer to a hypothetical question, based on facts not placed in evidence by other witnesses. See Code § 38-1710; Ellis v. Southern Rwy. Co., 89 Ga.App. 407(1), 79 S.E.2d 541; Norman v. Allen, 118 Ga.App. 394(2), 163 S.E.2d 859.

2. The trial judge did not err, as is contended in enumerated errors 4, 5, 6, and 7, in refusing to admit in evidence Lucas's testimony in response to three hypothetical questions, which were defective in that they variously assumed the weight of the defendant's truck, which was not in evidence; erroneously stated the distance which the evidence showed the plaintiff's truck to have been knocked; and omitted certain key, material evidentiary facts, such as the light and weather conditions (other than ice on the bridge only) and the curve and grade of the bridge (which both affected the visibility of the plaintiff's truck to the defendant's driver), the speed of the defendant's truck, and the fact that the defendant's driver attempted to turn back to his left and applied his brakes just prior to the collision. Furthermore, it is not shown, except in the brief, what the witness would have testified had he been allowed to answer the questions. See Mahone v. State, 120 Ga.App. 234(3), 170 S.E.2d 48; Maloy v. Dixon, 127 Ga.App. 151(1b), 193 S.E.2d 19.

3. In making exceptions to the charge, plaintiff's counsel excepted to the trial judge's giving the defendant's requested charges numbered 1 through 19, on the ground that 'They are argumentative, they were repetitious so as to be more favorable to the defendant, and were misleading to the jury.'

In his eighth enumeration of error, counsel assigns error on the trial judge's giving the defendant's requested charges without informing the plaintiff's counsel as to the charges he intended to give, as provided by Code Ann. § 70-207(b) (Ga.L.1965, pp. 18, 31; 1968, pp. 1072, 1078). In his brief, the plaintiff does not argue the grounds of objection made at the trial, and they are considered as abandoned.

The record shows that the defendant's requests to charge were presented to the court, with copies to plaintiff's counsel at the close of the evidence, but prior to argument. In the colloquy between the judge and counsel for both parties at the conclusion of the evidence, it appears that plaintiff's counsel had ample opportunity to determine which of the defendant's requests to charge the judge intended to give to the jury, but did not do so. We consider the trial judge's failure to inform counsel of his intention regarding the requests to charge, as mere inadvertence. It is certainly not such an omission as will require the grant of a new trial, particularly since there is nothing in the record showing that the plaintiff was harmed thereby. Federal cases construing this portion of Rule 51 of the Federal Rules of Civil Procedure, which is practically identical with our § 70-207(b), have held to the effect that, in the absence of any request by counsel to be informed of the judge's proposed action on the requested charges, (which request was not made in the instant case), noncompliance with the provision in question is not, in and of itself, reversible error. See Luther v. Maple, 8 Cir., 250 F.2d 916; Tyrill v. Alcoa Steamship Co., D.C., 185 F.Supp. 822, 824(1). This enumerated error is without merit.

4. Enumerated errors 9 and 10 contend that the defendant's requested charges numbered 7, 8, 9, and 15, concerning the plaintiff's avoidance of consequences, etc., were erroneously given (1) because they were not adjusted to the pleadings and the evidence, (2) because they are 'argumentative and by their repetition unduly stress and emphasize the contentions of the defendant,' and (3) 'because the court failed to inform the plaintiff of its intentions to so charge the jury.' The latter contention is answered in Headnote 3, hereinabove. '. . . (Code Ann. § 70-207(b)) does not require that counsel be offered opportunity before the charge of the court to object to requests to charge, although the court, in its discretion, may hear objections to the requests at that time.' Windsor Forest, Inc. v. Rocker, 115 Ga.App. 317(3), 154 S.E.2d 627....