Drummond v. Gladson, A95A1420
| Decision Date | 20 October 1995 |
| Docket Number | No. A95A1420,A95A1420 |
| Citation | 219 Ga.App. 521,465 S.E.2d 687 |
| Parties | DRUMMOND et al. v. GLADSON. |
| Court | Georgia Court of Appeals |
Flournoy & Gentry, Matthew C. Flournoy, William C. Gentry, Marietta, for appellants.
Downey & Cleveland, Joseph C. Parker, Marietta, for appellee.
This case arises from a collision between plaintiff Ronald Drummond, on his motorcycle, and defendant Jimmy Lee Gladson, in his pickup truck. Plaintiffs Ronald Drummond and his wife appeal from a judgment entered on a jury verdict for defendant. In their sole enumeration of error, plaintiffs contend the trial court erred in admitting a diagram prepared by the investigating officer based on his observations of physical evidence at the scene, including motorcycle skid marks leading to the point of impact. The officer's diagram showed the course of the two vehicles prior to the accident (the vehicles were traveling towards each other, in opposite directions) and indicated that Ronald Drummond was driving his motorcycle on the wrong side of the road. Concluding that the trial court did not abuse its discretion in admitting the diagram and that plaintiffs' failure to provide a transcript of all the evidence at trial would preclude us from finding harmful error anyway, we affirm.
1. An investigating officer, as an expert, is allowed to testify about what he observed at the accident scene and to give his conclusions from those observations about what happened (as opposed to which party was at fault). See Emory v. Dobson, 206 Ga.App. 482, 426 S.E.2d 50 (1992). Indeed, we have held that it is an abuse of discretion not to allow an investigating officer to testify about how an accident occurred. See Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga.App. 385, 391-392(3), 414 S.E.2d 521 (1991).
In this case, the diagram reflected the investigating officer's conclusions based on his observations and thus was properly admitted. Although the trial court never formally found the officer to be an expert as it should have (see Dimambro Northend Assocs. v. Williams, 169 Ga.App. 219, 221(2), 312 S.E.2d 386 (1983)), the evidence showed that the witness had been a police officer for more than 20 years, had received training in accident investigation, and had investigated well over 100 traffic accidents. Moreover, "[t]here can be no doubt a police officer with investigative experience on automobile collisions is an expert." Jefferson Pilot, 202 Ga.App. at 392, 414 S.E.2d 521. Thus, because it would have been an abuse of discretion not to accept the officer as an expert, the court's failure to formally do so could not have prejudiced plaintiffs and does not negate the officer's status as an expert. Cf. Dimambro Northend, 169 Ga.App. at 222-223, 312 S.E.2d 386 ().
Plaintiffs also point out that the officer himself did not consider himself an expert. But because status as an expert is a legal question for the court to decide, see Dept. of Transp. v. Great Southern Enterprises, 137 Ga.App. 710, 712(1), 225 S.E.2d 80 (1976), the witness's failure to consider himself an expert is not determinative. The witness may choose not to call himself an expert because of false modesty, or it may be because he knows he has colleagues with the same or more expertise. After all, "expert" is a relative term: amongst any community of specialists, only a few are considered by the others to be the real "experts," but to the rest of the world any of the specialists would be an "expert" and would be considered one in a court of law.
2. Although we have concluded that the trial court did not err, we nonetheless address plaintiffs' disturbing position that it did not need to file a transcript of all the evidence presented at the trial. Plaintiffs suggest that the judges of this court are too busy to read the whole transcript of the trial; that there is therefore no need to file the whole transcript; and that if the defendant wants more of the transcript filed, he must file it himself. But this line of reasoning ignores that it is the burden of the plaintiffs (as appellants) to show harmful error, see City of Atlanta v. Barton, 153 Ga.App. 426, 265 S.E.2d 345 (1980); a determination of whether an error was harmful simply cannot be made without a review of all the evidence presented at trial. It is true that parties must cite to us the portions of the record supporting their arguments, to enable us to find them easily (see Court of Appeals Rule 27(c)(3)), but this does not mean we do not review all the evidence before making any determination which--like a determination of whether an error is harmless--requires us to evaluate the evidence. Plaintiffs' suggestion that defendant (as appellee) must file any portions of the trial transcript which show that an error is harmless might make our job easier, but it would effectively shift the burden on this issue and is therefore unacceptable.
Judgment affirmed.
I agree that the judgment should be affirmed but I do not fully concur in the opinion.
1. Out of the presence of the jury, the court heard testimony and argument with respect to whether the police officer was qualified as an expert to give his opinion with respect to how the collision occurred. The court expressly refused to permit the officer to testify as to his conclusions about the path of the motorcycle prior to the collision, applying its understanding of the ruling in Emory v. Dobson, 206 Ga.App. 482, 426 S.E.2d 50 (1992). In that case, the Court held that "the trial court correctly prohibited the officer from opining concerning which party was at fault in the accident." Id. at 484, 426 S.E.2d 50.
The court in this instance distinguished the opinion on the ultimate question and the opinion that the skid marks coming...
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