McClaskey v. Jiffy Lube, Inc., A90A2299

Decision Date08 November 1990
Docket NumberNo. A90A2299,A90A2299
Citation197 Ga.App. 537,398 S.E.2d 825
PartiesMcCLASKEY v. JIFFY LUBE, INC. et al.
CourtGeorgia Court of Appeals

Emmett J. Arnold IV, Jonesboro, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Robert W. Browning Smith, Gambrell & Russell, Thomas E. McCarter, David A. Handley, Atlanta, for appellees.

DEEN, Presiding Judge.

Edward D. McClaskey brought a lawsuit against Jiffy Lube, Inc., and Richard Bradshaw for personal injuries allegedly arising out of an incident which occurred at a Jiffy Lube store, where appellant had been employed prior to his discharge some eight days earlier. The case went to trial before a jury, and the court granted appellees' motion for a directed verdict at the close of the plaintiff's evidence. This appeal follows the denial of appellant's motion for a new trial. Held:

In granting the motion for a directed verdict the trial court held that "after considering all the evidence introduced, with all reasonable deductions therefrom, and after hearing arguments of counsel, the court finds that all of the claims of plaintiff are barred pursuant to the Georgia Workers' Compensation Act." In his notice of appeal, appellant specifically stated that the "transcript of the evidence and proceedings will not be filed for inclusion in the record on appeal."

The party asserting error on appeal has the burden to show if affirmatively by the record. Gillespie v. Gillespie, 259 Ga. 838, 388 S.E.2d 688 (1990). The appellant has a duty to provide the appellate court with a transcript "where an appeal is taken which draws in question the transcript of the evidence and proceedings...." OCGA § 5-6-41(c). "This court is a court for the correction of errors and its 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." Sheffield v. Zilis, 170 Ga.App. 62, 65, 316 S.E.2d 493 (1984). An appeal in which a consideration of the enumeration of errors is dependent upon a consideration of the evidence heard by the trial court will be affirmed if a transcript is not included as a part of the appellate record. Curry v. State, 148 Ga.App. 59, 251 S.E.2d 86 (1978). The party asserting error has a duty to show it by the record. York v. Miller, 168 Ga.App. 849, 850, 310 S.E.2d 577 (1983).

As the instant appeal requires a transcript to determine whether the evidence showed that appellant's sole remedy was under the provisions of the Georgia...

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14 cases
  • Hipple v. Simpson Paper Co., No. A98A1416
    • United States
    • Georgia Court of Appeals
    • 11 septembre 1998
    ...authorized the judgment of the trial court. See Gillespie v. Gillespie, 259 Ga. 838, 388 S.E.2d 688 (1990); McClaskey v. Jiffy Lube, 197 Ga.App. 537, 398 S.E.2d 825 (1990). While Hipple cites facts from an affidavit he filed prior to trial in support of his motion to dismiss, these facts ma......
  • Salvador v. Coppinger, A90A1734
    • United States
    • Georgia Court of Appeals
    • 28 janvier 1991
    ...the trial court's conclusions in denying the motion for new trial on the inadequacy of the verdict were proper. McClaskey v. Jiffy Lube, 197 Ga.App. 537, 398 S.E.2d 825 (1990); Windom v. State, 187 Ga.App. 18, 19(2), 369 S.E.2d 311 (1988); In re R.L.Y., 181 Ga.App. 14, 16, 351 S.E.2d 243 (1......
  • Damani v. State
    • United States
    • Georgia Supreme Court
    • 22 septembre 2008
    ...appeal and as further designated by appellee (OCGA § 5-6-42) and the reviewing court (OCGA § 5-6-41(f)). See McClaskey v. Jiffy Lube, Inc., 197 Ga.App. 537, 398 S.E.2d 825 (1990). In this case, when it was discovered portions of the record had not been transmitted for appeal, either party c......
  • Bradshaw v. Byrd
    • United States
    • Georgia Court of Appeals
    • 29 octobre 1998
    ...no transcript of the trial proceedings from which we could assess the sufficiency of the evidence presented. McClaskey v. Jiffy Lube, 197 Ga.App. 537-538, 398 S.E.2d 825 (1990). 2. The Bradshaws also contend they are entitled to a new trial because they were forced to use a peremptory strik......
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