Compher v. Georgia Waste Systems, Inc.

• Decision Date: 31 October 1980
• Docket Number: 60222,Nos. 59991,s. 59991
• Citation: Compher v. Georgia Waste Systems, Inc., 273 S.E.2d 200, 155 Ga.App. 819 (Ga. App. 1980)
• Parties: COMPHER v. GEORGIA WASTE SYSTEMS, INC. et al. GEORGIA WASTE SYSTEMS, INC. v. COMPHER.
• Court: Georgia Court of Appeals

Page 200

273 S.E.2d 200

155 Ga.App. 819

COMPHER v. GEORGIA WASTE SYSTEMS, INC. et al.

GEORGIA WASTE SYSTEMS, INC. v. COMPHER.

Nos. 59991, 60222.

Court of Appeals of Georgia.

Submitted June 16, 1980.

Decided Sept. 9, 1980.

Rehearing Denied Sept. 24, 1980.

Certiorari Denied Oct. 31, 1980.

William C. Lanham, Clark H. McGehee, Atlanta, for appellant.

W. Wray Eckl, Mary E. Mann, Atlanta, for appellees.

CARLEY, Judge.

These appeals involve a personal injury action arising out of a motorcycle-truck collision between plaintiff-motorcyclist and the driver of the truck owned by defendant, Georgia Waste Systems, Inc. The plaintiff received very serious injuries and, because of alleged amnesia, did not testify at trial. According to the driver of defendant's truck, he was traveling 30 to 40 m. p. h. in the east-bound lane of a two-lane highway when plaintiff suddenly emerged from a driveway to the driver's left and crossed both lanes of traffic. The truck driver further testified that he attempted to avoid the collision by braking and swerving into the west-bound traffic lane. However, the driver testified that the motorcycle apparently made a U-turn and re-entered the west-bound lane of traffic where the collision occurred. Defendant's reconstruction expert corroborated the truck driver's version of how the collision occurred. On the other hand, plaintiff's reconstruction expert testified that his examination of the physical evidence showed that defendant's version of the collision could not be correct. Also, plaintiff's counsel presented circumstantial evidence on the following theories of how the collision might have occurred: plaintiff was traveling in the west-bound lane and was hit by defendant's truck after the driver crossed the center line and entered plaintiff's lane of traffic; the driver was attempting to pass the plaintiff improperly; or plaintiff was preceding the truck in the same lane of traffic when something occurred causing both vehicles to swerve to the left. The jury returned a verdict in favor of defendant. In Case Number 59991 the plaintiff appeals from the denial of his amended motion for new trial. In Case Number 60222 the defendant appeals from the denial of its motion to dismiss plaintiff's appeal. The appeals are consolidated for review and will be considered in this single opinion.

1. The defendant urges that the trial court abused its discretion in denying its motion to dismiss plaintiff's appeal. In the instant case, a final judgment on the jury's verdict in favor of defendant was filed on January 26, 1979. Plaintiff filed a timely motion for new trial but the same was not ruled on and denied until October 4, 1979. Thereafter, plaintiff filed his notice of appeal to this court on October 9, 1979. The cost bill for preparing the record for appeal was received in the office of plaintiff's counsel on October 31, 1979. The costs were paid on December 7, 1979, the very day plaintiff's counsel received defendant's motion to dismiss the appeal.

Code Ann. § 6-809(b) provides, in part, that the trial court may dismiss an appeal where delay in transmission of the record is both unreasonable and inexcusable and caused by the failure of a party to pay costs in the trial court or file pauper's affidavit. Young v. Climatrol, etc., Corp., 237 Ga. 53, 55, 226 S.E.2d 737 (1976); Owens v. State, 144 Ga.App. 611, 241 S.E.2d 485 (1978). "The trial court's decision on this issue will be reversed only for an abuse of discretion." DuBois v. DuBois, 240 Ga. 314, 240 S.E.2d 706 (1977).

The defendant cites Cousins Mtg., etc., Invest. v. Hamilton, 147 Ga.App. 210, 248 S.E.2d 516 (1978) and other decisions which suggest that a period of more 30 days in the transmittal of the record to the appellate court be considered as a prima facie indication of an unreasonable and inexcusable delay. However, in considering the question of unreasonable delay, the Supreme Court noted that "... it should be remembered that the time provided for filing the transcript or record is not jurisdictional, but merely a means of avoiding unreasonable delay so that the case can be presented on the earliest possible calendar in the appellate courts." Young v. Climatrol, etc., Corp., supra, 237 Ga. at 55, 226 S.E.2d 737. In view of the fact that it took a little over seven months to obtain a ruling on plaintiff's motion for new trial, we cannot say that a delay of 37 days in paying the bill of costs would appreciably lengthen the litigation. Furthermore, plaintiff's counsel paid the costs on the same day he received notice of defendant's motion to dismiss. Compare Cousins Mtg., etc., Invest. v. Hamilton, supra. We do not believe that the trial court abused its discretion in concluding that a 37-day delay, in this case, was not unreasonable.

With respect to the issue of excusability, plaintiff's counsel attributed the delay to the case load in his office and to the medical condition of the attorney who was lead counsel during the trial of this case. As previously noted, it is uncontroverted that the costs bill was received in the office of plaintiff's counsel on October 31, 1979. Plaintiff's present counsel testified that he had no independent recollection of ever seeing the bill of costs and that it was first brought to his attention by the receipt of defendant's motion to dismiss. It appears that the bill was found among the mail and effects of deceased co-counsel, who shortly after October 31 had been directed by his physician to cease trial duties. In light of the foregoing we find no abuse of discretion in the trial court's conclusion that the delay in this case was neither unreasonable nor inexcusable. The denial of defendant's motion to dismiss plaintiff's appeal was entirely proper under the circumstances surrounding the delay.

2. In Case Number 59991, plaintiff appeals enumerating three errors. The first enumeration of error relates to a question propounded by defense counsel regarding plaintiff's use of marijuana. As previously noted, plaintiff was not present during the trial of this case due to alleged amnesia and personality change resulting from the collision. However, plaintiff's father was called as a witness by plaintiff's counsel and testified as to the disposition, temperament, and conduct of his son during the year prior to the collision and to the change in his son's personality since the collision. At the close of direct examination of plaintiff's father, a discussion was held out of the presence of the jury regarding plaintiff's misdemeanor conviction for possession of marijuana. The court ruled that defense counsel could not put the conviction into evidence, but refused to entertain plaintiff's motion in limine to restrict the questions regarding plaintiff's use of marijuana that defense counsel might pose to the witness. Rather, the court informed counsel for plaintiff that he could "object to them as the questions are asked."

During cross examination of plaintiff's father, defense counsel asked the following question: "Are you aware before April 7th of 1977 of the use of marijuana by your son?" There was an objection and motion for mistrial on the basis that the question was prejudicial and not relevant or material to anything elicited on direct examination. The trial court sustained plaintiff's objection, denied the motion for mistrial and instructed the jury to "strike the question from your mind and memory." On appeal, plaintiff urges that the actions of the trial judge constituted error. We do not agree.

"An instruction to the jury to disregard evidence is tantamount to an exclusion. (Cit.)" Bowman v. Bowman, 230 Ga. 395, 396, 197 S.E.2d 372 (1973); Underwood v. State, 144 Ga.App. 684, 689, 242 S.E.2d 339 (1978). Furthermore, "(t)he granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge's discretion will not be interfered with." Salmon v. Salmon, 223 Ga. 129, 153 S.E.2d 719 (1967). We believe the curative instructions of the trial court were sufficient to correct any error which might have occurred here and that a mistrial was not essential to preserve the right of the plaintiff to a fair trial. Bell v. State, 129 Ga.App. 783(6), 201 S.E.2d 340 (1973); Woods v. State, 233 Ga. 495, 498, 212 S.E.2d 322 (1975).

Also, we are not convinced that the question posed by defense counsel was improper. Before being asked the question, plaintiff's father had testified as to his son's disposition, temperament and conduct prior to the collision (particularly mentioning that plaintiff was a cub scout, boy scout, and reborn Christian) and to plaintiff's changed personality and conduct since the collision. While under Code Ann. § 38-202 the general character of the parties, and especially their conduct in other transactions, are irrelevant matters, it is proper on cross examination to question a character witness regarding particular matters so as to test the extent and basis for the opinion given. Upton v. State, 128 Ga.App. 547, 551, 197 S.E.2d 478 (1973); Franklin v. State, 230 Ga. 291, 292, 196 S.E.2d 845 (1973). Thus, assuming without deciding that the father's testimony placed the plaintiff's character in issue, defense counsel's question would have been permissible. Furthermore, the cross examination regarding the witness' knowledge of his son's use of marijuana was, perhaps, relevant to show that plaintiff's personality and conduct had not changed to the extent shown by the father's testimony and, thus, might be relevant in the jury's assessment of damages. See Hall v. Elliott, 150 Ga.App. 323(3), 257 S.E.2d 311 (1979).

For the foregoing reasons, the trial judge's refusal to grant a mistrial was, under the circumstances, within the allowable exercise of his discretion. This enumeration is without merit.

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