Christiansen v. Robertson

• Decision Date: 13 July 1976
• Docket Number: No. 2,No. 52258,52258,2
• Citation: 228 S.E.2d 350,139 Ga.App. 423
• Parties: P. F. CHRISTIANSEN et al. v. J. L. ROBERTSON
• Court: Georgia Court of Appeals

Page 350

228 S.E.2d 350

139 Ga.App. 423

P. F. CHRISTIANSEN et al. v. J. L. ROBERTSON.

No. 52258.

Court of Appeals of Georgia, Division No. 2.

July 13, 1976.

Rehearing Denied July 28, 1976.

Skinner, Wilson, Beals & Strickland, John V. Skinner, Jr., Earl B. Benson, Jr., Atlanta, for appellants.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Atlanta, for appellee.

PANNELL, Presiding Judge.

The appellants, daughter and father, brought a complaint against James L. Robertson in the Superior Court of DeKalb County, seeking recovery for personal injuries received by the daughter and for property damage to an automobile and medical and travel expenses, etc., of the appellant-father. The collision occurred when an automobile driven by the wife and the mother of the appellants made a left turn in front of an automobile driven by Robertson in an area which had a posted speed limit of 35 miles an hour, and which was hilly. The evidence was in dispute as to the speed of the Robertson automobile and as to the visibility because of the hills. The daughter suffered personal injuries; and hospital bills, medical expenses, etc., were incurred by the father and considerable damage done to both automobiles; that of the father and that of the defendant. The jury returned a verdict in favor of the defendant as to both complainants. The complainants appeal to this court. Held:

1. It is clear from the evidence that the daughter suffered severe injuries as the result of the collision, requiring hospital and medical treatment, and that she suffered considerable pain during that time. The question of liability was in dispute. The only way the jury could have found against the plaintiff was solely on the question of lack of liability on the part of the defendant.

(a) It follows that the enumerations of error on charges given and failure to charge in certain particulars, all as to the matter of damages, if error, were harmless error. (Enumerations of error 6, 7, 8 and 9.) Fain v. Southern R. Co., 3 Ga.App. 734, 737(3), 60 S.E. 359; Hill v. Harris, 11 Ga.App. 358(6), 75 S.E. 518. (b) And as a corollary, the failure to admit certain testimony of a Doctor objected to as not responsive to a question, which answer indicated a possibility of aggravation of the injury if a future trauma were to occur; and excluding a letter written by a Doctor relating to the extent of the daughter's injuries and progress, over objection it was hearsay, was similarly harmless, even if error. (Enumerations of error 4 and 5.) Foy v. Edwards, 118 Ga.App. 665(2), 165 S.E.2d 176; Stubbs v. Greyhound Lines, 116 Ga.App. 58(2), 156 S.E.2d 474; Hieber v. Watt, 119 Ga.App. 5(6), 165 S.E.2d 899.

2. Error is enumerated on the giving of a charge on sudden emergency (Enumeration of error No. 1). Prior to the jury retiring to deliberate the case, this charge was 'excepted' to, but no ground of objection or exception was stated as required by Section 17 of the Appellate Practice Act (Ga.L.1965, pp. 18, 31) as amended by Section 9 of the Act of 1968 (Ga.L.1968, pp. 1072, 1078; Code Ann. § 70-207). MacDougald Construction Co. v. State Highway Dept., 125 Ga.App. 591(2), 188 S.E.2d 405; Georgia Power Co. v. Maddox, 113 Ga.App. 642(1), 149 S.E.2d 393 as modified by A-1 Bonding Service v. Hunter, 125 Ga.App. 173, 179, 186 S.E.2d 566.

3. In enumeration of error No. 2, appellant complains of the failure to give the following request to charge: 'Ladies and Gentlemen of the Jury, I charge you that under the law of this State an extrajudicial judicial statement, or-stated another way-a statement made out of court by an opposing party inconsistent with the position of that party taken at trial is positive evidence of the fact asserted notwithstanding that party's denial at the trial of having made the statement. The evidentiary value of such an out-of-court statement is not annulled by the contradictory testimony of the person charged with making it. It is for you the Jury to determine whether such an out-of-court statement was true or false when made.' He relies upon Petty v. Folsom, 229 Ga. 477, 478, 192 S.E.2d 246; and Faulkner v. Brown, 92 Ga.App. 602, 603, 89 S.E.2d 583. Both of these cases relate to the admissibility of such evidence. The trial judge did give the following charge: 'I charge you that you may consider any voluntary statements or admissions made by the parties in the case if you find the same were voluntarily made.' While this charge may not have been as complete as that requested, it covers the subject matter thereof, and it is our opinion that under the facts and circumstances of the case, and the charge given, there was no harm done to the appellant. Former Code § 70-207 of the Code of 1933 requiring a reversal if a proper request to charge was not given in the language requested was repealed by the Appellate Practice Act of 1965. Ga.L.1965, pp. 18, 39.

4. Error is enumerated on the refusal of the trial judge to permit a police witness with a number of years experience as an investigator of automobile collisions 'to testify regarding the speed of appellee's automobile at the time it began to skid' prior to the impact 'and to reconstruct, based on his expertise and investigation, the occurrence before and during the time of the subject collision.'

In passing on this enumeration of error we pretermit any question as to whether it violates the rule relating to the requirement that enumerations of error shall be separately stated. Mull v. Emory University, Inc., 114 Ga.App. 63, 64(2), 150 S.E.2d 276.

( a) As to the reconstruction of the collision, the record discloses the following occurred: 'Q. Sgt. Howell, from your experience as a police officer in the field of accident investigation and from your observation and investigation of the subject occurrence, can you reconstruct exactly what happened at the time, what happened in this accident?' ATTORNEY FOR THE DEFENDANT: 'I'm going to object to that question.' THE COURT: 'I'll sustain the objection to the question as propounded, ask him specific questions.' The plaintiff's attorney then asked a number of specific questions among which was 'have you previously, using your knowledge from a police report, reconstructed this accident on one of...