Maloy v. Dixon

• Decision Date: 06 September 1972
• Docket Number: No. 3,No. 47310,47310,3
• Citation: 127 Ga.App. 151,193 S.E.2d 19
• Parties: Mary R. MALOY et al. v. George DIXON
• Court: Georgia Court of Appeals

Page 19

193 S.E.2d 19

127 Ga.App. 151

Mary R. MALOY et al. v. George DIXON.

No. 47310.

Court of Appeals of Georgia, Division No. 3.

Sept. 6, 1972.

Rehearing Denied Sept. 27, 1972.

Syllabus by the Court

1. (a) Interrogatories and answers, or depositions, which were filed with the clerk of the trial court but which were never tendered or introduced into evidence, did not become a part of the record of the trial, and, although transmitted with the record on appeal, are not properly a part of the record and cannot be considered.

(b) Error must be shown by the record. It cannot be demonstrated by extraneous matter which the clerk of the trial court may have sent up with the record, or by assertions in the brief of counsel which are unsupported in the record.

2. (a) Failure of a defendant, who is under no duty to aid the plaintiff in making out his case, to testify at the trial does not require application of the presumption raised by Code § 38-119.

(b) Where a verdict is returned in favor of the plaintiff, errors in the giving of a charge, in omissions from the charge or in the refusal to give requests to charge which go to the matter of liability only, even if error, are harmless to the plaintiff and afford him no ground for reversal. This rule applies to the refusal of a request to charge the presumption of Code § 38-119 when a defendant has failed to appear and testify.

3. It is not error to refuse a request to charge the presumption of Code § 38-119 on the basis that the defendant failed to produce and use a witness when there is nothing in the evidence to indicate that there was such a witness.

4. Where both plaintiff and defendant have closed their presentation of evidence, and have so announced to the court, it is within the sound discretion of the trial judge as to whether a re-opening of the case will be granted to permit the plaintiff to call the defendant for cross examination, and absent a manifest abuse of that discretion, a denial of the motion to re-open the case is not error.

5. It is not error to refuse a request to charge when the substance thereof has been covered adequately by the general charge.

6. Inadequacy of the verdict does not appear simply because the amount is smaller than the plaintiff sought to obtain; and where the jury is authorized to consider the matter of comparative negligence, a verdict for a small amount will not generally be disturbed on the ground of inadequacy.

7. The general grounds of the motion for new trial are without merit.

Mrs. Mary Ruth Maloy and her husband, Charles W. Maloy, brought suit against George Dixon in which Mrs. Maloy sought damages for personal injuries sustained when there was a collision between a car she was driving and a truck alleged to have been operated by Dixon, the husband seeking recovery of medical expense disbursed in behalf of his wife and for loss of consortium.

It is alleged that the collision occurred on an expressway, that both vehicles were traveling in a southerly direction, and that as defendant's truck was changing lanes the right side of the truck struck the left side of Mrs. Maloy's car about the front doorpost and windshield, and that she was seriously injured because of defendant's negligent operation of his truck. Defendant answered, denying all allegations of the petition save those as to jurisdiction, and asserting that Mrs. Maloy's injuries resulted from her own negligence or from her failure to exercise ordinary care for her own safety, and that if defendant were negligent in any manner the negligence of Mrs. Maloy equaled or exceeded that of the defendant.

Plaintiffs served interrogatories on the defendant, and defendant served interrogatories on plaintiff, Mrs. Maloy. Each answered. Plaintiffs deposed defendant, 'for the purpose of cross examination, for discovery, and for all purposes permitted by law.' The interrogatories and answers and the deposition were filed with the clerk of the court, but none of them was ever introduced or tendered in evidence on trial of the case.

The case came on for trial before a jury and each of the plaintiffs testified, introduced medical testimony relative to Mrs. Maloy's injuries, and the amount of the medical expense incurred. At the conclusion of plaintiffs' evidence, they closed. Defendant then closed without introducing any evidence, whereupon plaintiffs moved to re-open the case for the purpose of allowing them to call the defendant for cross examination, but the court refused to do so.

Verdicts in favor of each plaintiff were returned, and being dissatisfied with the amounts thereof they moved for a new trial. Their motion was denied, and they bring this appeal, enumerating error upon the overruling of the motion for new trial, as amended.

Haas, Holland, Levison & Gibert, Theodore G. Frankel, Harold D. Corlew, Atlanta, for appellee.

Dennis & Fain, Dennis J. Webb, Atlanta, Ga., for appellee.

EBERHARDT, Presiding Judge.

1. Although the clerk of the trial court has included the interrogatories and answers and the deposition in the record transmitted to this court, these were never introduced into evidence, never became part of the transcript below and are not properly a part of the record here. Herring v. Pepsi Cola Bottling Co., 113 Ga.App. 680(1), 149 S.E.2d 370; Smith v. Zachry, 128 Ga. 290(1), 57 S.E. 513. They cannot be considered in ruling upon the enumerations of error. Smith v. Continental Cas. Co., 102 Ga.App. 559(2), 116 S.E.2d 888; Howell v. Federated Mut. &c. Ins. Co., 114 Ga.App. 321(1), 151 S.E.2d 195; Jackson v. United States Fidelity & Guaranty Co., 119 Ga.App. 111(3), 166 S.E.2d 426. 'The burden is on the party alleging error to show it affirmatively by the record.' Shepherd v. Shepherd, 225 Ga. 455, 457, 169 S.E.2d 314, 316. As will hereafter appear, certain of the enumerations of error are dependent upon matter to be found only in the interrogatories and answers, in the deposition, or by assertions in appellants' brief. The brief cannot serve in the place of the record or the transcript for the purpose of demonstrating error or for supporting a claim of error. Airport Associates v. Audioptic Instructional Devices, Inc., 125 Ga.App. 325(2), 187 S.E.2d 567. Our 'decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel.' Jenkins v. Board of Zoning Appeals of City of Columbus, 122 Ga.App. 412(2), 177 S.E.2d 204. And in this context 'record' means the pleadings and those portions of the record or transcript which reflect what in fact transpired on the trial of the case. Extraneous matter, though erroneously included and sent up, cannot be considered.

2. Error is enumerated on failure of the court to give in charge a request that when a party has evidence within his power or control by which he may rebut a claim against him and fails to produce that evidence, a presumption arises that the evidence would be unfavorable or harmful to the party failing to produce it. This principle is stated in Code § 38-119.

(a) The request was grounded on the failure of the defendant to testify. The Supreme Court and this court have held that when a defendant, who is under no duty to aid the plaintiff in making out his case, ¹ fails to testify the presumption of Code § 38-119 is not appropriate or applicable against him. Emory v. Smith, 54 Ga. 273; Thompson v. Davitte, 59 Ga. 472(7); Stephenson v. Meeks, 141 Ga. 561(2), 81 S.E. 851; Ward v. Morris, 153 Ga. 421, 424, 112 S.E. 719; Seagraves v. Couch & Jackson, 168 Ga. 38(4b), 147 S.E. 61; McCallie v. McCallie, 192 Ga. 699(3), 16 S.E.2d 562; Howard v. Obie, 190 Ga. 394, 9 S.E.2d 666; Ramirez v. Mansour, 104 Ga.App. 651(1), 122 S.E.2d 594. For an exception, see Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708, and compare Western & A.R. Co. v. Morrison, 102 Ga. 319(2), 29 S.E. 104.

(b) But if this were not the case it has long been the rule that when a verdict has been returned in favor of the plaintiff, errors in the giving of the charge, in omissions from the charge or in the refusal of requests which go to the matter of liability only are harmless to the plaintiff and afford no ground for reversal at his instance. Peterson v. Wadley & Mt. Vernon R. Co., 117 Ga. 390(1), 43 S.E. 713; Jackson v. Seaboard Air-Line R., 140 Ga. 277, 283, 78 S.E. 1059; Brown v. Brown, 152 Ga. 463(2), 110 S.E. 234; Jackson v. Lipham, 158 Ga. 557(5), 123 S.E. 887; O'Quinn v. Douglas, Augusta & Gulf R. Co., 7 Ga.App. 309(1, 2), 66 S.E. 810; Hunt v. Western & A.R., 49 Ga.App. 33, 36, 174 S.E. 222; Trammell v. Atlanta Coach Co., 51 Ga.App. 705, 706, 181 S.E. 315; L. P. Gunson & Co. Inc. v. Garrett, 53 Ga.App. 717(3), 186 S.E. 849; Groover v. Cudahy Packing Co., 61 Ga.App. 707, 708, 7 S.E.2d 287; Walker v. Southeastern Stages, Inc., 68 Ga.App. 320(3), 22 S.E.2d 742; Brown v. Service Coach Lines, Inc., 71 Ga.App. 437(8), 31 S.E.2d 236; Joyce v. City of Dalton, 73 Ga.App. 209, 216, 36 S.E.2d 104; Baggett v. Jackson, 79 Ga.App. 460, 463, 54 S.E.2d 146; Kaylor v. Romines, 85 Ga.App. 839, 841, 70 S.E.2d 395; Beecher v. Farley, 104 Ga.App. 785(3), 123 S.E.2d 184; Bell v. Camp, 109 Ga.App. 221(2), 135 S.E.2d 914; Stynchcombe v. Gooding Amusement Co., Inc., 110 Ga.App. 864, 867, 140 S.E.2d 232; Butler v. Stewart, 112 Ga.App. 293(1), 145 S.E.2d 47. ² The presumption, if any, which could have arisen from failure of the defendant to testify was only that the plaintiffs' claims were 'well founded,' and since the verdict was for the plaintiff, establishing the defendant's negligence, it could have added nothing. Thus, failure to give the requested charge was, even if error (which we do not decide), altogether harmless.

It is elemental that one who seeks the reversal of a verdict and judgment must show harm as well as error. Code Ann. § 81A-161; Brown v. City of Atlanta, 66 Ga. 71, 76; Dill v. State, 222 Ga. 793(1), 152 S.E.2d 741; Bateman v. Bateman, 224 Ga. 20(1)...