Mack v. Barnes, 47882
| Decision Date | 28 February 1973 |
| Docket Number | No. 47882,No. 2,47882,2 |
| Citation | 196 S.E.2d 684,128 Ga.App. 328 |
| Parties | Timothy MACK et al. v. J. J. BARNES et al |
| Court | Georgia Court of Appeals |
Spence, Payne & Masington, Podhurst, Orseck & Parks, Robert Orseck, Miami, Fla., Johnson, Harper, Daniel, Ward & Stanfield, Frank M. Eldridge, Atlanta, for appellants.
T. M. Smith, Jr., Hunter S. Allen, Jr., Atlanta, for appellees.
Syllabus Opinion by the Court
Plaintiffs' appeal results from a verdict rendered for defendant doctors based upon alleged medical malpractice in which the enumerations of error are limited to the charge given by the trial judge to the jury. The appellants contend the charge 'was improper as confusing, misleading, contradictory, and repetitious so as to prejudice the plaintiffs.' During a charge conference the appellants' counsel expressed objections to certain portions of the proposed instructions. This included a statement that 'I would object to repeating any portion of the charge a second time.' However, there was no objection made at the conclusion of the charge. In fact, the transcript shows that at the conclusion of the charge, upon direct inquiry of the attorneys 'to note any exceptions or objections to the charge of the court' there was an express answer of 'None, Your Honor.' Additionally, when the court made a recharge upon the express request by the jury as to 'How we shall consider evidence which may be based on negligence on the part of the doctor or on a question of judgment on the part of the doctor' the court again made specific inquiry of counsel after giving his recharge. Again counsel answered in the negative in reply to the existence of any 'further exceptions or objections to the further instructions of the court.'
1. Appellants' counsel recognize the strictness with which this court has applied the charge exception requirement imposed by the Appellate Practice Act codified as Code Ann. § 70-207(a) since its adoption in 1965 when our legislature comprehensively revised our appellate and post-trial procedure. Illustrative are Nathan v. Duncan, 113 Ga.App. 630, 149 S.E.2d 383; DuFour v. Martin, 117 Ga.App. 160(3), 159 S.E.2d 450; Seagraves v. ABCO Manufacturing Co., 121 Ga.App. 224, 173 S.E.2d 416; Fleet Transport Company v. Cooper, 126 Ga.App. 360, 190 S.E.2d 629; Seabolt v. Cheesborough, 127 Ga.App. 254, 193 S.E.2d 238, and Utzman v. Srochi, 127 Ga.App. 294, 193 S.E.2d 195. To avoid the impact of these decisions, appellants argue that their failure to object at the conclusion of the charge should be considered under the provisions of subparagraph (c) of Code Ann. § 70-207 which authorizes consideration of erroneous charges that are harmful as a matter of law.
Study of the cases in which we have dealt with subparagraph (c) led this court in Central of Ga. Ry. Co. v. Luther, 128 Ga.App. 178(1), 196 S.E.2d 149 to state this proposition: 'Reversals by reason of erroneous jury charges to which no exceptions are taken are generally those in which (1) there was an erroneous presentation of the sole issue for decision...
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...707, 710, 161 S.E.2d 342, 345 (1968) (emphasis by the court). Failure to except in effect amounted to a waiver. Mack v. Barnes, 128 Ga.App. 328, 330(3), 196 S.E.2d 684 (1973). We do observe that the Fifth District vice president of IBEW testified on cross examination that he thought Taylor ......
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...by this court. We do not agree. See in this connection Nathan v. Duncan, 113 Ga.App. 630, 631(6), 149 S.E.2d 383; Mack v. Barnes, 128 Ga.App. 328, 329(1), 196 S.E.2d 684; Durrett v. Farrar, 130 Ga.App. 298, 306(8), 203 S.E.2d Judgment affirmed. PANNELL, P.J., and MARSHALL, J., concur. ...
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...jury returned a verdict." Caudell v. Sargent, 118 Ga.App. 405, 164 S.E.2d 148, 149 (1968). (Emphasis supplied.) See Mack v. Barnes, 128 Ga.App. 328(2), 196 S.E.2d 684 (1973). 7. One of the condemnees' value witnesses, a banker, testified that he had used the market value approach in making ......