McGee v. Jones

• Decision Date: 20 March 1998
• Docket Number: No. A97A2428.,A97A2428.
• Parties: McGEE v. JONES.
• Court: Georgia Court of Appeals

499 S.E.2d 398

232 Ga. App. 1

McGEE v. JONES.

No. A97A2428.

Court of Appeals of Georgia.

March 20, 1998.

Reconsideration Denied April 2, 1998.

Beck, Owen, Murray, William M. Dallas III, Griffin, for appellant.

Christopher C. Edwards, Griffin, Michele K. Ogletree, for appellee.

ELDRIDGE, Judge.

Eddie McGee appeals from a judgment entered upon a jury verdict in favor of Elisa A. Jones. Jones sought damages for injuries Jones sustained when she fell from a swing on the porch of a house she rented from McGee. McGee contends the trial court erred by allowing Jones to introduce in evidence a new swing which was not substantially similar to the actual swing; erred by allowing Jones to testify over his objection that she could not afford to have the surgery her doctors recommended; erred by refusing to allow McGee to introduce evidence of Jones' Medicaid coverage at the time of the incident; erred by permitting Jones to argue that legal accident was not the law in Georgia; and also erred by giving the jury an unauthorized charge on the liability of a landlord for improper repairs.

The evidence showed that Jones rented a home from McGee in June 1993, and on September 10, 1993, she fell from a swing that was on the front porch of the house. Before he rented the house to Jones, McGee and his family had lived in the house for many years, and he rented the home to other tenants. While he lived in the house, McGee installed the swing in question, which allegedly had been in his family's possession since before 1931, on the front porch and he used the swing nearly every day. On one occasion, McGee flipped out of the swing while he and his daughter were engaging in horseplay. Other than this incident, however, nothing had occurred with the swing to cause McGee to believe that the swing was dangerous or unsafe.

Before renting the house to Jones, McGee painted and inspected the swing, and he had painted the swing on other occasions and had replaced the chains. About three months after Jones moved into the house, she fell out of the swing. She had only used the swing two or three times in the months she lived there, and she had not noticed any problems with the design, construction, or condition of the swing before her injury.

Jones testified at trial that on the day of her injury she was sitting in the swing and when she turned and leaned back, she flipped out of the swing, fell, and injured her shoulder. Although a bolt attaching the chain to the swing was broken, Jones contends that the bolt broke after she was flipped out of the swing. Thereafter, Jones filed suit against McGee contending that the swing was defective because it had a propensity to turn over backward, that McGee had actual or constructive knowledge of this defect, and that she was not aware of the defect. The main issue at trial was whether McGee knew or should have known that the swing was defective. After a jury trial, a verdict was reached in favor of Jones for $135,000. This appeal followed. Held:

1. McGee first alleges that during the trial Jones introduced in evidence a swing that he contended was not similar to the swing from which Jones fell, and he contends that it was error to allow the introduction of this new swing because it was not truly similar and because the actual swing was available. Thus, he contends a proper foundation was not laid for introduction of the swing. Jones contends, however, that use of the new swing was warranted because it was similar to the old swing, except for the positions of the chains, and, further, although the swing was not introduced in evidence, use of the new swing also was warranted because she could not use the old swing for demonstrative purposes as it was broken. Thus, Jones asserts that the new swing was merely demonstrative evidence, and that, in any event, McGee waived the issue because he used the new swing in his case in chief and in closing argument.

Use of demonstrative evidence and conducting demonstrations during the course of a trial rest in the sound discretion of the trial judge. See Ruger v. State, 263 Ga. 548, 436 S.E.2d 485 (1993); Powell v. State, 226 Ga.App. 861, 487 S.E.2d 424 (1997); Atkinson v. State, 170 Ga.App. 260, 263, 316 S.E.2d 592 (1984). Although the old swing was available, the record shows that it was broken and it was not suitable for use to demonstrate how either Jones or McGee was thrown out of the swing. Therefore, under the circumstances of this case, we find no abuse of the trial court's discretion in allowing the swing to be used as demonstrative evidence.

To the extent that McGee seeks to argue that the trial court should not have allowed Jones to argue that the new swing showed that the old swing was unsafe, that issue is not included within the enumeration of error and we cannot consider it. "`An enumeration of error cannot be enlarged to include other issues not made therein.'" Hurston v. Ga. Farm, etc., Ins. Co., 148 Ga.App. 324, 326, 250 S.E.2d 886 (1978). Further, appellate review cannot be enlarged or transformed through switching, shifting, or mending your hold. Ailion v. Wade, 190 Ga.App. 151, 155, 378 S.E.2d 507 (1989); Redwing Carriers v. Knight, 143 Ga.App. 668, 674, 239 S.E.2d 686 (1977). Accordingly, this other issue cannot be considered. Sanders v. Hughes, 183 Ga.App. 601, 604, 359 S.E.2d 396 (1987).

2. McGee contends the trial court erred by allowing Jones to testify that she could not afford to have surgery that her doctors recommended, as this evidence was inadmissible since he had raised no issue regarding her failure to have the surgery. Jones contends, however, that the evidence was admissible because McGee had requested a charge stating that the failure to follow physician's recommendations can result in the loss of damages.

The financial resources of a party generally are not relevant in a tort action. Worthy v. Kendall, 222 Ga.App. 324,325-326, 474 S.E.2d 627 (1996). Further, in Warren v. Ballard, 266 Ga. 408, 467 S.E.2d 891 (1996), our Supreme Court held that such evidence was not generally admissible because the lack of money to pay medical bills did not relate to any material issue in the case. See also Worthy v. Kendall, supra. While at first blush it would appear that Warren v. Ballard, supra, would demand that this evidence be excluded, Jones contends that this evidence was admissible to show why she did not have the surgery that her doctors recommended. Thus the evidence that Jones could not afford to have the recommended surgery was material under the circumstances of this appeal, because the record shows that McGee had requested that the jury be charged that "except in cases involving severe and grave operations, one must follow the expert recommendation of her physician or she cannot recover damages which might have been avoided thereby." Because this evidence of Jones' worldly circumstances related to an issue to be tried, it was admissible and the trial court did not err by admitting this evidence.

3. McGee also contends the trial court erred by not allowing him to cross-examine Jones about her entitlement for Medicaid and whether Medicaid would pay for the surgery as it had other medical bills, including the bills for the deliveries of her children. Thus, McGee argued that he should be allowed to show that Jones had resources available to pay for the surgery. This is the opposite side of the issue raised in Division 2, and if the trial court was correct in allowing the evidence in the first instance, it would seem that McGee should have been allowed to show that Jones' testimony was false. Under these circumstances, Warren v. Ballard, supra, would not exclude this evidence because a party is allowed to rebut admissible evidence that is material to issues in the case.

Review of the transcript, however, shows that the trial court excluded evidence of Jones' entitlement to Medicaid because McGee was unable to prove that Medicaid was available to pay for the surgery Jones required and the trial court did not feel that the burden should be placed on Jones to prove that Medicaid would not pay for her surgery. The trial court specifically ruled, however, that McGee would be allowed to prove that Medicaid would pay for the surgery. Ultimately, McGee made a proffer outside the presence of the jury that some of Jones' medical bills were paid by Medicaid and some were not.

As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga.App. 742, 743, 344 S.E.2d 536 (1986). The trial court's ruling allowed McGee to introduce evidence that Medicaid would have paid for the recommended surgery, but McGee did not choose to do so. Under these circumstances, we do not find that the trial court abused its discretion by refusing to allow McGee to inquire of Jones about the availability of Medicaid to pay for the recommended surgery.

4. We also find no error in the trial court giving a charge on the liability of a landlord for improper repairs. A jury charge is authorized by the evidence if there is some evidence from which a legitimate process of reasoning can be carried on in respect to the charge (T.G. & Y. Stores Co. v. Waters, 175 Ga.App. 884, 886, 334 S.E.2d 910 (1985)), and this is true even if the great preponderance of the evidence is to the contrary. Lyles v. State, 130 Ga. 294, 60 S.E. 578 (1908). As there is evidence that McGee repainted and put new chains on the swing, that was sufficient to authorize this charge.

5. McGee contends the trial court erred by allowing Jones' counsel to argue that legal accident is not the law in Georgia. We disagree.

In his closing argument, McGee's counsel stated, "Ladies and gentlemen, my opinion, or I contend that you should find based on the evidence that what we have here is a legal...