Hunter v. Hardnett, A90A1913

• Decision Date: 15 March 1991
• Docket Number: No. A90A1913,A90A1913
• Citation: 405 S.E.2d 286,199 Ga.App. 443
• Parties: HUNTER v. HARDNETT.
• Court: Georgia Court of Appeals

Page 286

405 S.E.2d 286

199 Ga.App. 443

HUNTER v. HARDNETT.

No. A90A1913.

Court of Appeals of Georgia.

March 15, 1991.

Rehearing Denied March 29, 1991.

Certiorari Denied July 3, 1991.

W. Allen Evans, Augusta, for appellant.

Law Offices of Sam G. Nicholson, Kenneth M. Nimmons, Oscar H. Allen, Augusta, for appellee.

ANDREWS, Judge.

Hardnett sued Hunter for damages he sustained in an automobile collision, alleging that Hunter negligently failed to yield the right-of-way at a stop sign. Hunter appeals from judgment entered on the jury verdict in favor of Hardnett.

1. Hunter contends the trial court erred by admitting the plaintiff's evidence of a traffic citation issued against him in conjunction with the accident. The citation charged Hunter with failing to yield the right-of-way at the stop sign. Prior to trial, Hunter moved in limine to exclude this evidence on grounds that it was ambiguous and subject to being construed in a way that would render it prejudicial and inadmissible.

There are blocks on the reverse side of the citation for indicating the disposition of the charge against the accused. A block noting entry of a guilty plea by Hunter was checked, and a block indicating Hunter was found guilty by the municipal court was also checked. In a civil action for damages arising from a vehicular collision, an adjudication of guilt by a traffic court that the defendant was in violation of a law alleged to be the proximate cause of the plaintiff's injuries is inadmissible as irrelevant and immaterial, but a plea of guilty is admissible as an admission against interest. Smith v. Goodwin, 103 Ga.App. 248, 249, 119 S.E.2d 35 (1961); Akin v. Randolph Motors, 95 Ga.App. 841, 848, 99 S.E.2d 358 (1957).

In testimony proffered at the pre-trial motion in limine and at trial, Hunter denied that he pled guilty to the citation. A certified copy of the citation showing both the guilty plea and the finding of guilt was introduced pursuant to OCGA § 24-7-20, as primary evidence under OCGA § 24-5-20. Rutledge v. Colonial Fin. Svc., 170 Ga.App. 317, 318-319, 316 S.E.2d 867 (1984); see also Ferrell v. State, 149 Ga.App. 405, 408, 254 S.E.2d 404 (1979) (traffic citation best evidence of its contents).

Though ambiguous and subject to conflicting interpretations, the citation was relevant if interpreted by the jury as a plea of guilty by Hunter. Evidentiary questions as to relevancy are generally for the court, but when the relevancy or competency of evidence is doubtful, the jury should be allowed to consider the facts, draw its own inferences, and assign such weight to the evidence as it may determine under appropriate instructions. Department of Transp. v. Delta Machine Prod. Co., 157 Ga.App. 423, 425-426, 278 S.E.2d 73 (1981). In Locklear v. Morgan, 129 Ga.App. 763, 767-768, 201 S.E.2d 163 (1973), an exhibit consisting of the related traffic citation, criminal warrant, and plea of guilty was admitted into evidence as an admission in a subsequent civil damages action arising out of the traffic offense. Although the sheriff disclaimed his signature on the warrant, we held that "[a]ny irregularity relative to the exhibit would go to [its weight] and not its admissibility," and "[t]he fact that the [sheriff] disclaimed his signature on the warrant, would not make the [plea] inadmissible in evidence, but would go to impeach the validity of the disposition of the criminal charge." Id. at 767-768, 201 S.E.2d 163. Even though a defendant may deny he made the admission, "whether he did is a question of fact for the jury, [and] it is not for the trial court to determine the credibility of the evidence or its weight, but only its competence." (Citations omitted.) Cannon v. Rithmire, 156 Ga.App. 360, 362, 274 S.E.2d 746 (1980).

Relevant evidence may be excluded, in the discretion of the judge, where the court finds that " 'its probative value is substantially outweighed by the risk that its admission will ... create substantial danger of undue prejudice or of confusing the issues or of misleading the jury. ...' [Cit.]" Metropolitan Property, etc., Ins. Co. v. Shepherd, 166 Ga.App. 300, 301, 304 S.E.2d 74 (1983). The decision of the trial court will not be disturbed except in cases of a clear abuse of discretion. Id., at 301, 304 S.E.2d 74. In the instant case there was no substantial danger of undue prejudice or confusion, and the trial court properly admitted the exhibit for the jury's determination of whether Hunter had in fact pled guilty, and thus made an admission against interest. The trial court correctly denied Hunter's motion in limine.

After the trial court charged the jury that there was evidence of a plea of guilty by Hunter, which could be considered as an admission, it would have been appropriate to charge that, if the jury concluded no guilty plea was entered, they should disregard the citation, but in the absence of any such request or objection to its omission, there is no basis for reversal on this ground. Morris v. Delong, 183 Ga.App. 124, 125, 358 S.E.2d 285 (1987); OCGA § 5-5-24(a). Although the charge respecting the citation was not precisely adjusted to the evidence, the trial court gave the charge requested by Hunter, which informed the jury that evidence of the plea was not conclusive of the issues before it, and the court otherwise fully instructed the jury on the general principles of negligence. Morris v. DeLong, supra; OCGA § 5-5-24(a). Under these circumstances we find the exception of OCGA § 5-5-24(c) inapplicable since even if Hunter did not acquiesce in the failure to charge, (see Bell v. Samaritano, 196 Ga.App. 612, 613, 396 S.E.2d 520 (1990)), the charge as given did not amount to substantial error harmful as a matter of law. Milam v. Attaway, 195 Ga.App. 496, 499, 393 S.E.2d 753 (1990).

2. In his second enumeration, Hunter claims the trial court erred by charging the jury on loss of earning capacity when there was no evidence to support the charge. Loss of earning capacity, when sought as a separate element of damages, refers to the pecuniary loss resulting from a diminished capacity to earn money in the future because of a permanent impairment, and requires evidence from which the jury can reasonably determine the amount of the resulting loss. Leggett v. Benton Bros., etc., 138 Ga.App. 761, 764-765, 227 S.E.2d 397 (1976); Augusta v. Drawdy, 75 Ga.App. 543, 547, 43 S.E.2d 569 (1947). The plaintiff introduced evidence that he suffered from a permanent disability as a result of the accident, but there was no evidence from which the jury could have determined the monetary amount of any resulting loss in earning capacity.

Where there is no evidence from which a jury can reasonably calculate the monetary loss resulting from the permanent impairment, loss of earning capacity may be sought, not as a separate element of damages, but as an element of pain and suffering. Jones v. Hutchins, 101 Ga.App. 141, 147, 113 S.E.2d 475 (1960); Hunt v. Williams, 104 Ga.App. 442, 451, 122 S.E.2d 149 (1961); Michaels v. Kroger Co., 172 Ga.App. 280, 283, 322 S.E.2d 903 (1984). In the instant case, the court charged the jury that "in considering damages for pain and suffering, you may consider the following: loss of impairment or of Plaintiff's powers or faculties, loss of earning capacity, any decrease in Plaintiff's ability to work, and any damage to the Plaintiff's body." This was the court's only charge on loss of earning capacity. Since loss of earning capacity was classified as an element of pain and suffering there was no error.

3. In enumeration of error number three, Hunter claims the jury instructions given on impairment of the plaintiff's ability to work were confusing and prejudicial. The record reveals Hunter...