Dietz v. Becker, s. A93A0394

CourtUnited States Court of Appeals (Georgia)
Citation434 S.E.2d 103,209 Ga.App. 678
Decision Date02 July 1993
Docket NumberNos. A93A0394,A93A0395,s. A93A0394
PartiesDIETZ et al. v. BECKER et al. TOKIO MARINE & FIRE INSURANCE COMPANY v. DIETZ et al.

David G. Chiodo & Associates, David G. Chiodo, R. Edward Furr, Jr., John J. O'Connell, Jr., Atlanta, for Dietz.

Cooper & Associates, Gary M. Cooper, Duluth, for Becker.

McLain & Merritt, M. David Merritt, Atlanta, for Tokio Marine & Fire Ins. Co.

POPE, Chief Judge.

Plaintiffs/appellants Earl and Patricia Dietz brought suit against Connie Becker and Clarence Jarrell seeking to recover damages for personal injuries plaintiffs allegedly received when the car in which they were traveling was rear-ended by a van driven by Becker and owned by Jarrell. The jury returned a verdict for the defendants and plaintiffs filed a motion for j.n.o.v. or, in the alternative, a motion for new trial as well as a motion for a post-verdict directed verdict and motion for new trial. Plaintiffs also filed a notice of appeal to this court. Plaintiffs subsequently withdrew their notice of appeal and, following a hearing, the trial court entered an order denying plaintiffs' motions. Plaintiffs then filed the present appeal which was docketed in this court as Case No. A93A0394 and Tokio Marine & Fire Insurance Company, one of the uninsured motorist carriers involved in this litigation, filed a cross-appeal, which was docketed in this court as Case No. A93A0395. We have consolidated these appeals for review by this court.

Case No. A93A0394

1. Defendants' motion to dismiss the appeal in Case No. A93A0394 is denied. See Housing Auth. v. Geter, 252 Ga. 196, 312 S.E.2d 309 (1984); see also Shirley v. State, 188 Ga.App. 357(1), 373 S.E.2d 257 (1988).

2. Plaintiffs contend the trial court erred in denying their various post-trial motions because the evidence establishing Becker's liability was uncontroverted. We agree there is no question that Becker's negligence caused the collision in this case; indeed, the record shows the trial court agreed to grant plaintiffs a directed verdict as to that issue. However, the record is likewise abundantly clear that the primary issue to be decided by the jury in this case was whether the injuries for which plaintiffs sought recovery were sustained in the collision with Becker, or whether plaintiffs' alleged injuries existed prior to this collision. " 'It is basic in our law that no liability attaches unless the negligence alleged is the proximate cause of the injury sustained.' Cline v. Kehs, 146 Ga.App. 350(6) (246 SE2d 329) (1978)." Dilworth v. Boeckler, 187 Ga.App. 241, 370 S.E.2d 17 (1988). Since the grant of a directed verdict on the issue of "liability" necessarily includes a determination of both negligence and causation, id., and since the central issue in this case was the proximate cause of the injuries alleged, we find no error in the trial court's denial of plaintiffs' motions for directed verdict. Cf. Thomas v. Kite, 206 Ga.App. 80, 424 S.E.2d 305 (1992); Drake v. Page, 195 Ga.App. 226(1), 393 S.E.2d 89 (1990). Moreover, although the court agreed to direct a verdict on the issue of Becker's negligence, plaintiffs did not object to the failure of the court to so instruct the jury. This enumeration is without merit.

3. Plaintiffs also contend that the trial court erred in allowing defendants to present evidence concerning plaintiffs' receipt of benefits from a collateral source.

At the outset we note that through their record citations, 1 plaintiffs have attempted improperly to expand this enumeration to include not just the introduction of collateral source evidence but also instances where the trial court allowed the defendants to inquire into the plaintiffs' financial circumstances. For example, the record shows the trial court allowed defendants to cross-examine plaintiff Earl Dietz concerning his statement that he was worried about losing his home after the accident. Plaintiffs objected, contending this was improper testimony concerning the parties' financial circumstances. Through cross-examination, defendants introduced evidence that Dietz continued to receive his salary from the date of the accident until the time his employment ceased and that plaintiffs received income from certain business ventures. Plaintiffs now cite to the introduction of this testimony as an example of the introduction of collateral source evidence over their strenuous objection. However, " '[w]here the objection urged below is not argued here it must be treated as abandoned, and where an entirely different basis of objection is argued on appeal which was not presented at trial, we will not consider this as error, for we are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error. (Cit.)' [Cit.] 'An objection to the admission or exclusion of evidence must be specifically raised at trial in order to be heard on appeal. (Cit.)' [Cit.] 'Only those grounds urged below will be considered on appeal. (Cit.)' [Cit.]" Daniel v. Parkins, 200 Ga.App. 710, 711(1), 409 S.E.2d 233 (1991). Moreover, defendants were clearly entitled to test the veracity of Earl Dietz's testimony that he was worried about the future and about losing his home after the accident. It follows that the trial court did not err by allowing defendants to cross-examine Dietz about this statement. This testimony elicited in cross-examination was not, as plaintiffs contend, inadmissible collateral source evidence, but rather was admissible to impeach Dietz's statement concerning his financial worries. Furthermore, this evidence was also relevant to the question of lost income, one of the items of damages plaintiffs sought to prove at trial.

The more difficult question in this case is whether the trial court erred in admitting evidence concerning long-term disability payments. Clearly, this is the type of evidence that would usually be inadmissible under the collateral source rule. Nonetheless, we do not believe a reversal is mandated under the facts of this case. First, we note that this is not a situation where the trial court erroneously allowed defendants to admit evidence of any and all collateral benefits received by plaintiffs. 2 Cf. Hayes v. Gary Burnett Trucking, 203 Ga.App. 693, 694(2), 417 S.E.2d 676 (1992). In this case the evidence that plaintiff Earl Dietz received long-term disability benefits related only to his claim for lost wages or income, and the evidence did not suggest that plaintiffs had been compensated from a collateral source or sources for the other items of damages they sought to prove at trial. Thus, although the evidence admitted might have caused the jury to return an inadequate verdict for the plaintiffs, it could not have resulted in a determination that plaintiffs were entitled to no recovery from defendants. It...

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    ...9, 1996); Bean v. Landers , 215 Ga.App. 366, 368 (2), 450 S.E.2d 699 (1994), cert. denied (Ga. Feb. 24, 1995); Dietz v. Becker , 209 Ga.App. 678, 681 (3), 434 S.E.2d 103 (1993), cert. denied (Ga. Oct. 29, 1993); Willard , 203 Ga.App. at 394 (2), 416 S.E.2d 798,cert. denied (Ga. May 8, 1992)......
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    • Georgia Court of Appeals
    • September 12, 2003
    ...(1998). 20. (Emphasis supplied.) 21. 259 Ga. 153, 377 S.E.2d 847 (1989). 22. Id. at 154(1)(a), 377 S.E.2d 847. 23. Dietz v. Becker, 209 Ga.App. 678, 679, 434 S.E.2d 103 (1993). ...
  • Kohl v. Tirado
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    • July 12, 2002
    ...grounds presented to and ruled upon by the trial court and then enumerated as error." (Punctuation omitted.) Dietz v. Becker, 209 Ga.App. 678, 679(3), 434 S.E.2d 103 (1993). Here, the trial court reserved ruling on the hearsay objection and then admitted the records without objection; thus,......
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