Hayes v. Gary Burnett Trucking, Inc.

• Decision Date: 11 March 1992
• Docket Number: No. A91A1507,A91A1507
• Citation: 203 Ga.App. 693,417 S.E.2d 676
• Parties: HAYES v. GARY BURNETT TRUCKING, INC. et al.
• Court: Georgia Court of Appeals

Page 676

417 S.E.2d 676

203 Ga.App. 693

HAYES v. GARY BURNETT TRUCKING, INC. et al.

No. A91A1507.

Court of Appeals of Georgia.

March 11, 1992.

Reconsideration Denied April 2, 1992.

Certiorari Denied June 12, 1992.

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Lance D. Lourie, Debra E. Levorse, Atlanta, for appellees.

COOPER, Judge.

Appellant was injured when her car was struck in the rear by a truck, and she subsequently filed a lawsuit against appellees, the truck company and the driver. Appellees denied liability and contended that the accident was the result of a sudden brake failure. Among appellant's theories of liability were that the brakes on the truck were not maintained in good working order and the appellees were negligent in failing to adequately inspect and service the braking system of the truck. The case was brought to trial before a jury, and a verdict was returned in favor of appellees. Appellant appeals from the judgment entered on the jury verdict.

1. Appellant contends in her first three enumerations of error that the trial court erred in excluding from evidence a statement made by the driver at the scene of the collision about prior brake problems and the condition of the truck's brakes. Prior to trial, appellees moved in limine to exclude evidence that four to six months before the accident with appellant, one of the two trucks owned by the company had a problem with a part of the braking system known as the diaphragm but that problem had been corrected. Appellees contended that in the accident involving appellant, the problem with the truck's brakes did not involve the diaphragm but occurred as a result of a broken screw in the braking system. The trial court granted appellees' motion in limine. At the end of the first day of trial, appellant made an offer of proof during which appellant stated that immediately after the collision, the driver of the truck approached her and said, "I knew I had problems with my brakes, and I told my boss." Appellant further testified that the day after the accident, the driver called her and said that about three months earlier he had a problem with a blown diaphragm on the truck. As part of her offer of proof, appellant also offered the deposition testimony of the truck driver who stated that other than the accident involving appellant, the only other brake failure on the truck involved the problem with the diaphragm. The trial court rejected appellant's offer of proof, which was renewed at the beginning of the second day of trial and again rejected.

Appellant contends that the statement made by the driver at the scene was admissible as part of the res gestae. Although the driver's statement may have constituted res gestae evidence, it was not relevant to the issues in the case to the extent that it referred to the brake problem which occurred in the truck several months earlier. Appellant failed to offer any evidence to show that the driver's statement referred to any problem other than the one he described as occurring several months earlier. In fact, appellant's offer of proof showed that the prior problem was the only other problem the driver had experienced with the brakes on the truck, and appellant failed to demonstrate that the prior brake problem caused her accident. " 'Questions of relevancy of evidence, which includes the issue of materiality, are for the court, and in the absence of an abuse of judicial discretion, this court will not interfere. (Cit.)' " Hendricks v. Southern Bell Tel., etc., Co., 193 Ga.App. 264(4), 387 S.E.2d 593 (1989). Furthermore, " ' "[w]hile the relevancy of other occurrences is ordinarily within the sound discretion of the court, 'it is necessary that the conditions of the things compared be substantially similar.' (Cit.)" [Cit.]' [Cits.]" Cooper v. Baldwin County School Dist., 193 Ga.App. 13(1), 386 S.E.2d 896 (1989). Even if we assume that the statement of the driver had some marginal relevance, it was excludable if its probative value was outweighed by its potentially prejudicial impact and its tendency to confuse the issues. Accordingly, we find no error with the trial court's exclusion of the statement. Hendricks, supra, 193 Ga.App. at 266, 387 S.E.2d 593.

2. Appellant also enumerates as error the trial court's denial of her motion in limine to exclude evidence of collateral benefits available to appellant or in the alternative, the denial of her motion to bifurcate the trial pursuant to OCGA § 9-11-42(b) as to liability and damages.

OCGA § 51-12-1(b), in effect at the time appellant's cause of action arose, authorized the trial court to admit evidence of collateral benefits received by appellant relative to her alleged damages. While appellant's notice of appeal was pending, the Supreme Court of Georgia held in Denton v. Con-Way Southern Express, 261 Ga. 41, 402 S.E.2d 269 (1991) that OCGA § 51-12-1(b) was unconstitutional. " ' "(A)n appellate court must apply the law in...