Dietz v. Becker, Nos. A93A0394
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | POPE; BIRDSONG, P.J., and ANDREWS |
| Citation | 434 S.E.2d 103,209 Ga.App. 678 |
| Parties | DIETZ et al. v. BECKER et al. TOKIO MARINE & FIRE INSURANCE COMPANY v. DIETZ et al. |
| Decision Date | 02 July 1993 |
| Docket Number | Nos. A93A0394,A93A0395 |
Page 103
v.
BECKER et al.
TOKIO MARINE & FIRE INSURANCE COMPANY
v.
DIETZ et al.
Reconsideration Denied July 28, 1993.
Certiorari Denied Oct. 29, 1993.
Page 104
[209 Ga.App. 682] 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.
[209 Ga.App. 678] 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 [209 Ga.App. 679] 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
Page 105
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