Finley v. Franklin Aluminum Co.
| Decision Date | 01 May 1974 |
| Docket Number | No. 1,No. 49211,49211,1 |
| Citation | 132 Ga.App. 70,207 S.E.2d 543 |
| Parties | James FINLEY et al. v. FRANKLIN ALUMINUM COMPANY et al |
| Court | Georgia Court of Appeals |
Parker & O'Callaghan, James I. Parker, Cedartown, L. B. Kent, Columbus, for appellants.
Richter & Birdsong, A. W. Birdsong, Jr., LaGrange, for appellees.
Syllabus Opinion by the Court
This is an appeal by two plaintiffs from judgments rendered upon verdicts for defendants in their suits which had been consolidated for trial. In these suits plaintiffs sought recovery of damages for personal injuries sustained from a head-on collision between the automobile in which they were riding and a truck owned by defendant Franklin Aluminum Co. and driven by its co-defendant employee. Each party contended the driver of the other vehicle was on the wrong side of the highway at the time of the occurrence. Initially there were 19 enumerations of error but those numbered 5, 6, 7, 8, 9, 10, and 12 have been expressly abandoned. Those seven enumerations dealt with alleged errors in the judge having declined specific requests to charge. We will consider the ramining twelve enumerations in numerical sequence.
1. The first two enumerations deal with the overruling of two motions for continuance. These were independent motions made by plaintiffs at the time defendants presented separately two witnesses whose names had not been listed in answers to interrogatories. Both appellants and appellees have argued the applicability of Nathan v. Duncan, 113 Ga.App. 630(7), 149 S.E.2d 383 and Jones v. Atkins, 120 Ga.App. 487, 171 S.E.2d 367. The briefs for both parties additionally present their respective interpretations of those interrogatories and answers. But neither the interrogatories nor the answers are contained in the appeal record. We are therefore unaware of what 'witness' questions plaintiffs propounded as well as the contents of defendants' answers. Our position therefore is in the stance stated thusly in Maloy v. Dixon, 127 Ga.App. 151, 153, 193 S.E.2d 19, 23: Accordingly, we must rule adversely to appellants on these two enumerations of error as 'The burden is on the party alleging error to show it affirmatively by the record.' Shepherd v. Shepherd, 225 Ga. 455, 457, 169 S.E.2d 314, 316.
2. Ground number 3 asserts the court erred in 'ruling inadmissible the results of a chemical test performed by Albert D. Poulin.' This was an expert witness who had conducted a laboratory study of the chemical contents of skid mark scrapings. These samples had been taken from the highway pavement more than 90 days after the occurrence. The transcript disclosed that thousands of vehicles daily traversed this highway. (Emphasis supplied). Central of Georgia Ry. Co. v. Keating, 45 Ga.App. 811, 815, 165 S.E. 873. The same rule is applicable to situations in which evidence of a subsequent condition is proffered because 'the disturbing contingency is that some circumstances operating in the interval may have been the source of the subsequent existence, and the propriety of the inference will depend on the likelihood of such intervening circumstances having occurred and been the true origin.' 2 Wigmore on Evidence 413, § 437. See also Big Apple etc. Market v. W. J. Milner & Co., 111 Ga.App. 282, 289, 141 S.E.2d 567. Under the circumstances of this case, the testimony of the expert was of such remoteness that there was no abuse of discretion in ruling the evidence inadmissible.
3. In the next enumerated error it is contended by appellants that the trial court erred in allowing a state trooper, presented by defendants as an expert witness, to give an opinion as to the location of the point of impact, the assertion being made that such opinion was not supported by the evidence. This suggestion is not meritorious. Morgan v. Bell, 189 Ga. 432, 437, 5 S.E.2d 897, 901. As the trooper testified he investigated the accident shortly after it occurred, adequate proof was presented that he was in a position to form an expert opinion. Moreover, the trooper testified as to the location of the vehicles after the collision, the damaged areas on the vehicles, the absence of any skid marks for the automobile, and the apparent 'locking' of the tractor-trailer's brakes. Thus, although it was not necessary, the trooper also stated the facts which formed the basis of his conclusion. See Green, Georgia Law of Evidence, § 111, in which the author states, 'When an expert testifies to his opinion based upon facts which he has observed it is not...
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Britton v. Boulden
...Malia v. Seeley, 89 Utah 262, 57 P.2d 357 (1936); Adamson v. Traylor, 66 Wash.2d 338, 402 P.2d 499 (1965); Finley v. Franklin Aluminum Company, 132 Ga.App. 70, 207 S.E.2d 543 (1974); Martin v. Dayton Power & Light Co., 107 Ohio App. 19, 156 N.E.2d 328 The decision of the Court of Appeals sh......
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Martin v. State, 57852
...results with prior analyses did not render erroneous the allowance of the expert opinion testimony. Cf. Finley v. Franklin Aluminum Co., 132 Ga.App. 70, 72(3), 207 S.E.2d 543 (1974). "Where the testimony of an expert is competent, he may be permitted to give the details of experiments on wh......
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...questions, this court has held otherwise. See, e.g., Jones v. Ray, 159 Ga.App. 734, 285 S.E.2d 42 (1981); Finley v. Franklin Aluminum Co., 132 Ga.App. 70, 207 S.E.2d 543 (1974). See also Vaughn v. State, 249 Ga. 803, 294 S.E.2d 504 (1982). Moreover, OCGA § 9-11-32(d) requires that objection......
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