Burdette v. Mcdowell, A12A1773.

• Decision Date: 26 February 2013
• Docket Number: No. A12A1773.,A12A1773.
• Citation: 739 S.E.2d 28,321 Ga.App. 507
• Parties: BURDETTE v. McDOWELL et al.
• Court: Georgia Court of Appeals

321 Ga.App. 507

739 S.E.2d 28

BURDETTE

v.McDOWELL et al.

No. A12A1773.

Court of Appeals of Georgia.

Feb. 26, 2013.

Frank J. Klosik Jr., Atlanta, Christopher Thomas Conway, for Appellant.

William Thomas Mitchell, Norcross, Richard Philip Hamilton, Andrew David Horowitz, Scott David Huray, Thomas S. Carlock, Atlanta, Floyd Michael Taylor, Charles Collins Mayers, Neal W. Dickert, Augusta, for Appellee.

McFADDEN, Judge.

Scott Blaine Burdette appeals from the judgment on a defense verdict and from the denial of his motion for new trial in this personal injury action. Burdette argues that the trial court erred in admitting hearsay; but, because his objection to that evidence below was on grounds other than hearsay, he has not preserved the hearsay issue for consideration on appeal. He argues that the trial court erred in refusing to give a requested jury instruction, but the charge the court gave accurately and sufficiently covered the issue addressed in the rejected instruction. Finally, he argues that the trial court erred in refusing his request to poll the jurors after the verdict, but the decision whether to poll the jury is discretionary, and he cannot show by the appellate record that the trial court abused its discretion.

This case arises out of a series of collisions on a rainy afternoon in March 2003 along a portion of Interstate 20 in Columbia County. Burdette was driving a Mazda Miata, heading east toward Augusta. Ten to 14 accidents had occurred in a thirty-minute period on that portion of I–20. That portion of I–20 East is two lanes. Burdette was in the right lane, behind a tractor-trailer truck with a blue cab. Another tractor-trailer truck was to his left.

The circumstances leading up to the collision at issue are disputed. According to Burdette, the tractor-trailer to his left started moving into his lane. But the driver of that truck, Seth Graves, contended he was stopped in the left lane behind a box truck driven by Johnnie Earl Horne. Horne, on the other hand, testified that Graves had told him that Graves was moving at the time.

The truck with the blue cab in front of Burdette began braking, eventually colliding with the truck in the left lane driven by Graves. Burdette drove to the right, into the emergency lane, and collided with another truck, a tanker, which was parked there. The tanker truck had pulled into the emergency lane after it had been clipped by yet another truck. The driver of the tanker truck had not used any emergency illuminating triangles to warn of his truck's presence. Burdette was severely and permanently injured.

1. The admission of a diagram attached to a police report.

Burdette enumerates as error that the trial court's decision to admit “hearsay police report diagrams for the jury in this case.” Specifically, he argues about a diagram prepared by an investigating officer, which reinforced defense testimony as to a disputed fact. It showed that the truck driven by Graves was stopped behind a box truck, as Graves testified, rather than moving, as Burdette and Horne testified.

Burdette contends that the trial court erred by admitting improper hearsay testimony, in the form of the diagram, from the investigating officer who prepared it. Burdette's counsel did object at trial to the admission of the diagram, but not on hearsay grounds. Rather, Burdette objected to the proferred police reports as a group, arguing that they were irrelevant because some of them concerned accidents that occurred in the westbound lanes of Interstate 20 and because they concerned accidents that occurred miles away from the scene of Burdette's accident. Burdette's relevancy objection was not “sufficient to notify the trial court of the legal ground at issue here so that its applicability could be measured and error avoided.” (Citation and punctuation omitted.) Slade v. State, 287 Ga.App. 34, 35(1), 651 S.E.2d 352 (2007). “To preserve an objection upon a specific ground for appeal, the objection on that specific ground must be made at trial, or else it is waived.” Holloway v. State, 278 Ga.App. 709, 713(4), 629 S.E.2d 447 (2006). Because Burdette failed to object on hearsay grounds to the admission of the accident report, he failed to preserve this issue for appeal. Edwards v. State, 282 Ga. 259, 260(4), 646 S.E.2d 663 (2007).

2. The failure to give Burdette's requested jury charge.

Burdette was cited for traveling too fast for conditions, and he forfeited his bond on the citation. At trial, he explained his reasons for failing to contest the charge: his injuries had incapacitated him and his recovery was the focus of his concern.

The trial court instructed the jury that “[f]orfeiting one's bond on a traffic citation is an admission of guilt. However, it is not conclusive evidence that the individual was negligent. It is only one circumstance for you to consider, along with all the other evidence.” Burdette argues that the court should have added that he was legally entitled to introduce evidence about his reasons for failing to contest the citations. He does not deny that the trial court allowed him to introduce such evidence, and that he, in fact, did so.

In reviewing a trial court's refusal to give a requested jury instruction, “we must look to the jury charge as a whole, and if the jury charge as a whole accurately and fully apprised the jury of the law to be applied in its deliberations, then the refusal to give an additional instruction, even if that additional instruction were accurate, does not amount to error.” (Citation omitted.) Harrison v. State, 309 Ga.App. 454, 457(2)(a), 711 S.E.2d 35 (2011). In this instance, “we discern no error in the trial court's refusal to give [Burdette's] requested charge on forfeiture because the trial court fully and fairly charged the jury on the issue.” Coleman v. Fortner, 260 Ga.App. 373, 375(1)(b), 579 S.E.2d 792 (2003).

The court charged the jurors that the bond forfeiture was, “not conclusive evidence that the individual was negligent. It is only one circumstance for you to consider, along with all the other evidence.” That charge provided a foundation sufficient to enable Burdette to argue to the jurors that they should disregard his bond forfeiture in light his explanation of that forfeiture.

The trial court's charge accurately stated the law regarding the effect of a party's bond forfeiture and made clear that the jury should consider all evidence to determine the issues in the case. We find no error.

3. The denial of Burdette's request to poll the jurors.

After the jury returned its verdict, counsel for Burdette asked to poll the jury, but the trial court denied the request. Burdette argues that the trial court erred in refusing that request. He argues that to the extent the law does not mandate a jury poll in civil cases upon request, it should be changed. He argues that civil litigants have the right to a unanimous verdict and without a poll of the jury to determine unanimity, the right is meaningless.

Regardless of the merits of Burdette's argument that civil litigants should have a right to a jury poll, we are constrained to reject that argument by long-standing Supreme Court precedent that whether or not to poll the jury in a civil case is a matter within the discretion of the trial court. See Peavey v. Crawford, 192 Ga. 371, 373(2), 15 S.E.2d 418 (1941); Bell v. Hutchins, 86 Ga. 562, 571, 12 S.E. 974 (1891). See also McNeil v. Cowart, 186 Ga.App. 411, 414(2), 367 S.E.2d 291 (1988); White v. Seaboard Coast Line R. Co., 139 Ga.App. 833, 835(1), 229 S.E.2d 775 (1976); Ludwig v. J.J. Newberry Co., 78 Ga.App. 871, 875(1)(c), 52 S.E.2d 485 (1949). “Polling the jury, in a civil case, is a matter within the discretion of the trial judge, ... and we will not undertake to control his discretion upon these matters of practice.” Bell, 86 Ga. at 571, 12 S.E. 974.

A trial court should have “good reason” for exercising its discretion to deny a request for a jury poll. See Smith v. Mitchell, 6 Ga. 458, 465 (1849) (“[A]lthough it is not the right of the parties, necessarily, to poll the [j]ury, yet it is a privilege within the discretion of the [c]ourt, which it will not, without good reason, deny to them.”). If the record reflected that the trial court had refused to poll the jury on the basis of an inflexible rule or policy, its decision would have been an unsustainable refusal to exercise its discretion. See Walker v. State, 292 Ga. 262, 264(2), 737 S.E.2d 311 (2013); Brown v. State, 65 Ga. 332, 337 (1880); Ramage v. State, 259 Ga.App. 616, 617, 578...