Cline v. Kehs

• Decision Date: 22 June 1978
• Docket Number: No. 55416,55416
• Citation: 146 Ga.App. 350,246 S.E.2d 329
• Parties: CLINE v. KEHS.
• Court: Georgia Court of Appeals

Page 329

246 S.E.2d 329

146 Ga.App. 350

CLINE v. KEHS.

No. 55416.

Court of Appeals of Georgia.

Argued Feb. 27, 1978.

Decided April 25, 1978.

Rehearing Denied June 22, 1978.

Simmons, Warren & Szczecko, Joseph Szczecko, P. A., Decatur, for appellant.

Savell, Williams, Cox & Angel, Edward L. Savell, Andrew Robert Greene, Atlanta, for appellee.

BIRDSONG, Judge.

Plaintiff brought this suit to recover damages for personal injuries sustained in an automobile collision. Shortly after the trial commenced, the trial judge on his own motion decided to bifurcate the issues of liability and damage, and to submit the case to the jury on written interrogatories. At the close of the trial on liability, the jury returned answers of "yes" to the three questions submitted by the court: Was the defendant negligent; was the plaintiff negligent; was any negligence of the plaintiff equal to or greater than the negligence of the defendant. Based on these answers, the trial court entered a judgment for the defendant, and plaintiff appeals. Held:

1. Plaintiff contends that the manner in which the trial judge bifurcated this case violated fundamental principles of due process and deprived plaintiff of his constitutional right to a fair trial. The court had the authority, pursuant to CPA § 42 (b) (Code Ann. § 81A-142 (b)), to order a separate trial on the issues of liability and damages. The court properly used its broad discretionary power not to encumber the trial with issues that could be separated, and being a discretionary matter there will be no reversal unless there has been a manifest abuse of discretion. Sollek v. Laseter, 124 Ga.App. 131, 183 S.E.2d 86. None has been shown.

2. As the trial court bifurcated the issues of liability and damage, no error was committed in excluding certain evidence concerning the permanent nature of plaintiff's injuries, or in excluding certain medical bills and records. The evidence excluded was not relevant to the issue of liability.

3. Plaintiff contends that the trial court erred in submitting written interrogatories to the jury which called for conclusions of law rather than findings of fact. As noted above, CPA § 42 (b) authorized a separate trial on the issue of liability. In furtherance of this statutory authority, a trial court may, under CPA § 49 (a) (Code Ann. § 81A-149 (a)), require a jury to return a special verdict "in the form of a special written finding upon each issue of fact." These interrogatories amounted to special verdicts. While the plaintiff did make a general objection to separating the issue of liability from the question of damages when originally informed by the court of its intention, the plaintiff did not raise any objection to the interrogatories as specifically submitted to the jury on the ground that the questions called for conclusions of law rather than findings of fact. In the absence of a specific and timely objection during the trial, the plaintiff waived any error and will not now be heard to complain that the interrogatories were erroneous. Folds v. Reese, 140 Ga.App. 291, 231 S.E.2d 808; 9 Wright & Miller, Federal Practice and Procedure: Civil § 2508.

4. While the trial court did not require the jury to return a general verdict for "plaintiff" or for "defendant," any error was waived as there was no request nor objection made to the form or content of the verdicts. Folds v. Reese, supra.

5. The trial court failed to give certain charges requested by plaintiff. No error was committed because:

(a) The requested charges concerning the measure of damages were not required because the court properly bifurcated the issues of liability and damages;

(b) Other requested charges concerned the negligence of the defendant. As the jury found the defendant to be negligent, plaintiff could not have been prejudiced by the failure to give the...