Goforth v. Wigley

• Decision Date: 21 March 1986
• Docket Number: No. 72049,72049
• Citation: 343 S.E.2d 788,178 Ga.App. 558
• Parties: GOFORTH v. WIGLEY et al.
• Court: Georgia Court of Appeals

Page 788

343 S.E.2d 788

178 Ga.App. 558

GOFORTH v. WIGLEY et al.

No. 72049.

Court of Appeals of Georgia.

March 21, 1986.

Rehearing Denied April 2, 1986.

Certiorari Denied May 7, 1986.

Frank M. Gleason, Rossville, John W. Davis, Jr., Brunswick, for appellant.

Lindsay H. Bennett, Jr., Hubert E. Hamilton III, Rossville, for appellees.

BIRDSONG, Presiding Judge.

This personal injury case arises out of a collision wherein the vehicle of appellant Goforth struck the rear end of appellees' vehicle which was stopped because of another collision ahead of the cars. The jury returned a verdict for the plaintiffs, Mr. and Mrs. Wigley, a total of $55,000 in damages. Goforth appeals. Held:

1. The appellant, defendant below, contends the trial court erred in excluding evidence of a "first-offender" conviction in federal court under the Youth Corrections Act, 18 U.S.C. § 5010(a), for motor vehicle theft, for impeachment purposes.

The Georgia courts have held that a guilty plea under the Georgia First Offender Act (OCGA § 42-8-60 et seq.) may be used in a criminal trial to impeach a state's witness, Favors v. State, 234 Ga. 80(3), 214 S.E.2d 645; Gilstrap v. State, 250 Ga. 814(2), 301 S.E.2d 277, or a defense witness, Moon v. State, 154 Ga.App. 312(1), 268 S.E.2d 366.

In Hightower v. Gen. Motors Corp., 255 Ga. 349, 352, 338 S.E.2d 426, the Supreme Court held that "a guilty plea as to which a plaintiff in a civil case has been granted first offender treatment is admissible in evidence to disprove and contradict such party's testimony given in the civil case." (Emphasis supplied.)

We find it unnecessary to go further and determine whether Wigley's set-aside conviction for motor vehicle theft under the federal act was admissible to impeach him generally in this case (see James v. State, 160 Ga.App. 185, 187, 286 S.E.2d 506), because the appellee has shown his testimony in this case to be cumulative of other evidence, as to both the facts of the collision and the issue of his wife's injuries. The appellant has not provided this court with a showing of any grounds upon which to find she was harmed by her inability to impeach Wigley with evidence of his federal guilty plea. Summerfield v. DeCinque, 143 Ga.App. 351, 354(3), 238 S.E.2d 712. Accordingly, this enumeration is without merit.

2. The trial court did not err in refusing to allow testimony as to the fact and details of the settlement of a previous claim by Mrs. Wigley against another driver in another auto collision which occurred two years earlier. Appellant Goforth contends the evidence of that $15,000 settlement was pertinent to prove her point that the plaintiff never visited her doctor after she received that settlement until she was allegedly injured in this case, i.e., that she was "cured" of her ailments arising out of the earlier collision by her receipt of compensation for them, Goforth calls this "compensation cure." Goforth contends the evidence would have enabled the jury to determine accurately the extent and origin of Mrs. Wigley's injuries complained of in this case, and whether Mrs. Wigley was exaggerating her symptoms so as to strengthen her claims.

The record shows that Goforth was not restricted in introducing evidence and cross-examining as to the fact of the earlier wreck and her injury, including correspondence with Wigley's insurer, but only as to "the amount of the settlement or ... to the fact that there's been a settlement." While evidence of prior claims for injuries arising from another unrelated incident may be admissible to prove the cause and extent of injuries in the instant action (Barnes v. Cornett, 134 Ga.App. 120, 213 S.E.2d 703), evidence as to the amount of a settlement or compromise in the earlier case is generally irrelevant and prejudicial and therefore inadmissible. Fred F. French Mgt. Co. v. Long, 169 Ga.App. 702(2), 314 S.E.2d 666. This is not a matter of excluding evidence under the collateral source rule, because this evidence is not evidence of receipt of other compensation for the same injury. See Garrison v. Rich's, 154 Ga.App. 663, 664, 269 S.E.2d 513. There is nothing but speculation to show that Mrs. Wigley's receipt of compensation for the 1981 collision cured her injuries, and even if there were, we fail to see what the significance of that fact would be to the issues in this case.

The plaintiff did not deny she had suffered injuries in the earlier incident, and Goforth was permitted the right to explore those injuries thoroughly; the jury was thus well enabled to determine whether this collision with Goforth, or the earlier collision, was the cause of her present injuries. "In all cases where the object sought to be proved can be proved without violation of a rule of evidence designed to prohibit prejudice, it should be done so, and the rule not broken unless by necessity, or where the merit of the evidence clearly outweighs its prejudice." Fred F. French Mgt. Co., 169 Ga.App. p. 704, 314 S.E.2d 666.

3. Appellant Goforth contends the trial court erred in allowing, over objection, the plaintiffs Wigley in final arguments to have one of their attorneys give the opening and the other of their attorneys to give the concluding argument, in violation of OCGA § 9-10-182. "Not more than two counsel for each side shall be permitted to argue any case, except by express leave of the court; and in no case shall more than one counsel be heard in conclusion." (Emphasis supplied.) The appellees Mr. and Mrs. Wigley contend they were entitled by this to have one of their attorneys argue in the opening of their final arguments and the other attorney in the concluding portion of their final argument; and that in fact only one attorney argued in the concluding portion of the final arguments.

The statute at least arguably intended to restrict each side, plaintiffs and defendants, to one counsel in arguing "in conclusion" of the case, since it speaks in terms of the right "to argue any case." Despite any rationale that might be offered by the appellant-defendant as to why the plaintiffs, Mr. and Mrs. Wigley, should not have been allowed more than one attorney in arguments at the close of evidence, we are convinced that the legislature perceived the distinction between opening statements and closing arguments (see Berryhill v. State, 235 Ga. 549, 550, 221 S.E.2d 185 and see 2 Encyclopedia of Ga. Law, Argument & Conduct of Counsel, § 7, p. 204), and in allowing no more than two attorneys "to argue in case" without express leave and restricting parties to one attorney in "conclusion," it referred solely to the arguments at the close of evidence, which in this state generally include an "opening" and a "conclusion" and an argument in between. See Pealock v. Pealock, 227 Ga. 795, 797, 183 S.E.2d 397. The plaintiff, or the party who bears the burden of proof, has the right to "open" and "close" the arguments; and the defendant has the one in between, which is, it being his only argument, his concluding argument (id.; Standridge v. Standridge, 224 Ga. 102, 160 S.E.2d 377), but the trial court has wide discretion in assigning these positions, particularly where there are more than two sides and more than two parties. See Hines v. Donaldson, 193 Ga. 783, 788-789, 20 S.E.2d 134.

Of the few cases addressing this code section (e.g., Berryhill v. State, supra; Pealock v. Pealock, supra, Hines v. Donaldson, supra; Morris v. West, 183 Ga. 214(3), 187 S.E. 861; White v. Cline, 174 Ga.App. 448, 449, 330 S.E.2d 386; Heard, Leverette & Adams P.C. v. Stone, 167 Ga.App. 113, 306 S.E.2d 72; Taylor v. Powell, 158 Ga.App. 339, 280 S.E.2d 386; Bennett v. Haley, 132 Ga.App. 512, 518, 208 S.E.2d 302), we find only two cases that indicate what is meant by the statutory restriction of one attorney "in conclusion." In Duke v. Steed, 127 Ga.App. 541, 194 S.E.2d 257, the "order of argument" ...