Childers v. Morris

• Decision Date: 07 April 1983
• Docket Number: Nos. 65338,65339,s. 65338
• Citation: 166 Ga.App. 229,303 S.E.2d 769
• Parties: CHILDERS v. MORRIS (two cases).
• Court: Georgia Court of Appeals

Page 769

303 S.E.2d 769

166 Ga.App. 229

CHILDERS v. MORRIS (two cases).

Nos. 65338, 65339.

Court of Appeals of Georgia.

April 7, 1983.

Maurice Byers, Dublin, for appellants.

Francis M. Lewis, Dublin, for appellee.

POPE, Judge.

Appellants Richard D. and Marcetta A. Childers filed separate suits against appellee Gerald M. Morris, seeking damages for injuries suffered in an automobile collision as a result of Morris' alleged negligence. Appeal is brought from verdicts in favor of the defendant-appellee and denial of plaintiff-appellants' motions for new trial.

1. Appellants' first three enumerations of error are on the general grounds. The evidence, while conflicting, was ample to authorize the jury to conclude, as they did, that appellee was driving within the speed limit and with the flow of traffic when appellants' car came to a sudden stop without warning by brake light or hand or mechanical signal, causing appellee's automobile to collide with appellants' vehicle. While appellants' pleadings and testimony alleged totally disabling injuries, the testimony of their expert witness, the treating physician, indicated that they were not so serious and that some of the injuries complained of were pre-existing or suffered in a later automobile collision. There were also inconsistencies throughout the testimony of Mr. and Mrs. Childers, and conflicting testimony as to Mr. Childers' loss of income and ability to resume normal activities.

" 'In passing on the sufficiency of the evidence to support the verdict, the appellate courts are to afford the evidence that view which is most favorable to the appellee and which is designed to uphold the verdict. All conflicts must be rendered against the appellant, and if there is any evidence to support the verdict it must be affirmed. (Cit.)' " Rollins v. Great Southwest Fire Ins. Co., 162 Ga.App. 139, 141, 290 S.E.2d 353 (1982). The evidence here was ample to authorize the verdict and judgment in favor of appellee. It follows that the trial court did not err in refusing to grant appellants' motions for new trial.

2. Appellants' enumerations of error 4, 5, and 6 assert that the trial court erred in referring to the Georgia no-fault insurance law during the course of the trial and in its charge to the jury. It is the "rule that generally liability or no-fault insurance coverage of a litigant is not admissible in evidence, and that unnecessary disclosure of such fact is ground for mistrial or reversal. [Cits.] The fact of insurance should never be admitted, much less charged, except and to the extent that it is germane to the issues in the case and necessary for their resolution." Goins v. Glisson, 163 Ga.App. 290, 292, 292 S.E.2d 917 (1982).

In the instant case the appellants' attorney specifically requested the court to instruct the jury that appellants could recover above the $5,000 no-fault statute provisions (OCGA § 33-34-1 et seq.; former Code Ann. § 56-3401b et seq.). The colloquy concerning whether to give these instructions was held outside the presence of the jury, and counsel for appellants subsequently stated that he had no...