Gurly v. Hinson

• Decision Date: 28 February 1990
• Docket Number: No. A89A2018,A89A2018
• Citation: 194 Ga.App. 673,391 S.E.2d 483
• Parties: GURLY et al. v. HINSON et al.
• Court: Georgia Court of Appeals

Page 483

391 S.E.2d 483

194 Ga.App. 673

GURLY et al. v. HINSON et al.

No. A89A2018.

Court of Appeals of Georgia.

Feb. 28, 1990.

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., Albany, for appellants.

Divine, Wilkin, Deriso & Raulerson, R. Kelly Raulerson, Albany, for appellees.

COOPER, Judge.

Appellant, the driver of a vehicle which was struck in the rear by appellee's vehicle, and her husband brought an action for personal injuries and loss of consortium, respectively. The jury returned a verdict in favor of the appellant wife on the claim for personal injuries, but returned a verdict for appellee on the claim for loss of consortium. The appellee and her father were named defendants as the vehicle involved was a family purpose vehicle. Appellants raise ten enumerations of error in their appeal of the judgment entered upon the verdict.

1. In enumerations 1 and 2, appellants contend that error occurred when appellants' counsel was prohibited by the trial court from asking questions of the appellee's father regarding an insurance claim form mentioned to the appellant wife and the property damage to her car. Inasmuch as appellants' counsel's question was only relevant to the question of liability, even if it were error to disallow it (which we do not determine), the trial court's ruling was harmless since a verdict was rendered for the appellant wife. See Maloy v. Dixon, 127 Ga.App. 151(2), 193 S.E.2d 19 (1972).

2. The third enumeration asserts error in the trial court's denial of appellants' motion for a directed verdict on the issue of liability. Any such error, if committed, was harmless to appellants since the jury returned a verdict in their favor on the issue of liability. Butler v. Anderson, 163 Ga.App. 547(2), 295 S.E.2d 216 (1982). The case cited by appellants, Davis v. Pachuilo, 169 Ga.App. 677, 314 S.E.2d 692 (1984) is distinguishable from the instant case because the court in the instant case gave no charges on comparative negligence, avoidance or contributory negligence and also because the jury verdict was in fact more than the appellant wife's medical expenses.

3. Appellants next contend that error occurred in allowing the appellee to make the final closing argument. The record shows that appellee was entitled to make the final closing argument pursuant to Uniform Superior Court Rule 13.4 since the appellee did not introduce or attempt to introduce any evidence at trial. Further, "[appellants'] failure to object promptly constitutes a waiver." Davis v. Davidson, 175 Ga.App. 451(3), 333 S.E.2d 648 (1985).

4. The fifth enumeration of error recites that the court's refusal to instruct the jury to disregard statements in the closing argument of appellee constituted error. The closing arguments were not transcribed, therefore we cannot review the alleged error. "The burden is on him who asserts error to show it affirmatively by the record [Cit.]. The brief cannot be used in lieu of the record for adding evidence to support a claim of error. [Cit.]" (punctuation omitted.) Cantrell v. Red Wing Rollerway, 184 Ga.App. 506(2), 361 S.E.2d 720 (1987). Furthermore, appellants' objection was not made until the trial was completed, the charge to the jury was made, and the jury had retired. Such an objection was not timely and therefore waived. Davis, supra 175 Ga.App. at Division 3, 333 S.E.2d 648; Hospital Auth., etc., v. Eason, 113 Ga.App. 401(13), 148 S.E.2d 499 (1966), rev'd on other grounds 222 Ga. 536, 150 S.E.2d 812 (1966).

5. The next enumeration asserts error in the charge given on legal accident. Since the jury returned a verdict for the appellant wife, it is apparent that this charge was not applied. Therefore, any error that may have been committed was harmless. Stroud v. Woodruff, 183 Ga.App. 628(3), 359 S.E.2d 680 (1987).

6. Appellants' seventh enumeration that error occurred because the jury was given an instruction on "serious injury" is without merit. The charge given was a correct statement of the law, and the evidence authorized such a charge. The doctor's testimony could raise an inference that the appellant wife's damages were due to other causes. Additionally, the doctor and the chiropractor that testified at trial first saw the appellant wife at least a year-and-a-half after the accident. This time lag, together with the testimony, was evidence that the jury was entitled to consider in their determination of whether the appellee's conduct resulted in a "serious injury" to the appellant wife. Loyd v. Henry, 174 Ga.App. 49(2), 329 S.E.2d 195 (1985).

7. Likewise, appellants' eighth enumeration is without merit. The trial court did not err in refusing to charge on OCGA § 40-6-163(a) since no written request to charge this statute was submitted by appellants. The record reveals no evidence of an oral request. Dept. of Transportation v. Pilgrim, 175 Ga.App. 576(1), 333 S.E.2d 866 (1985).

8. Appellants next contend that the judgment of the trial court is inadequate to compensate appellants as a matter of law. The amount of a jury verdict for pain and suffering is determined by the "enlightened conscience of impartial jurors." Palmer v. Farmer, 184 Ga.App. 753(3), 362 S.E.2d 453 (1987). Unless a jury award "is so flagrantly...