Morris v. Bonner

• Decision Date: 01 July 1987
• Docket Number: No. 74253,74253
• Citation: 183 Ga.App. 499,359 S.E.2d 244
• Parties: MORRIS v. BONNER.
• Court: Georgia Court of Appeals

Page 244

359 S.E.2d 244

183 Ga.App. 499

MORRIS v. BONNER.

No. 74253.

Court of Appeals of Georgia.

July 1, 1987.

James V. Towson, Craig N. Cowart, Macon, for appellant.

J.A. Powell, Jr., Gerald S. Mullis, Macon, for appellee.

McMURRAY, Presiding Judge.

Irene P. Bonner (plaintiff) filed an action against Cheryl S. Morris (defendant) to recover damages for property loss and personal injuries she allegedly sustained in an automobile collision with defendant. A jury trial resulted in a verdict for plaintiff in the amount of $16,000. This appeal followed. Held:

1. In her first enumeration of error defendant contends the trial court erred in sustaining plaintiff's motion to disqualify a prospective juror who expressed, upon voir dire, a bias against chiropractors.

Plaintiff's attorney conducted the following examination of the prospective juror during jury selection: "[Plaintiff's attorney]: Mrs. Bennett, a moment ago you said that you didn't put much faith in chiropractors, is that correct? [Juror]: Yes ... I just don't think that a chiropractor's treatment should take the place of medical treatment when something is definitely wrong. I think a chiropractor can make you feel wonderful by massaging your back--I think he can make you feel good. I don't think they can cure anything. [Plaintiff's attorney]: All right. Would you think that your belief in chiropractors would have an effect in this case because we're going to have testimony of two chiropractors who've treated [plaintiff], and that feeling there, would it have an effect on your decision? [Juror]: If that was the only treatment that she received, I think it would. [Plaintiff's attorney]: Your Honor, I'd like to strike her for cause." Whereupon, the trial court granted plaintiff's motion and excused the prospective juror. There was no objection to this ruling by defendant.

"The trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial. American Oil Co. v. Studstill, 132 Ga.App. 56 (207 S.E.2d 553)." Hill v. Hosp. Auth. of Clarke County, 137 Ga.App. 633, 636, 224 S.E.2d 739. Under the circumstances of the case sub judice, we find the trial court did not abuse its discretion in dismissing the prospective juror for bias. See Jones v. Cloud, 119 Ga.App. 697, 705(5), 168 S.E.2d 598. However, assuming the contrary, any error in dismissing the prospective juror for cause was harmless since there is nothing in the record to indicate that defendant did not have the benefit of an impartial jury. " 'A party to a lawsuit has no vested interest in having any particular juror to serve; he is entitled only to a legal and impartial jury.' [Grasham v. Southern R. Co., 111 Ga.App. 158, 160(5), 161, 141 S.E.2d 189]." Hill v. Hosp. Auth. of Clarke County, 137 Ga.App. 633, 636, 224 S.E.2d 739, supra.

Another reason this enumeration of error is without merit is that defendant failed to make a timely objection to the trial court's ruling striking the prospective juror from the jury panel. Adler v. Adler, 207 Ga. 394(1), 61 S.E.2d 824.

2. The pivotal issue raised in defendant's second enumeration of error centers on whether the trial court erred in failing to charge the jury as follows: "I charge you members of the jury that the introduction of electrical current or high frequency energy waves into the body to treat muscle injuries preparatory to a chiropractic adjustment are outside of the scope of chiropractics in this state. Therefore, you may not consider any such treatment in this case and any expenses incurred for such treatment cannot be considered by you to compensate the plaintiff." ¹

Although evidence at trial showed that plaintiff received treatment from her chiropractors which was referred to as "electro-therapy," there was no evidence showing that plaintiff was charged for the "electro-therapy." On the contrary, one of the plaintiff's chiropractors, who was an associate of the other chiropractor who treated plaintiff, testified that plaintiff was not charged for the "electro-therapy." Explaining this service, plaintiff's chiropractor testified that the "electro-therapy" was included in the regular price of an office visit. This testimony was supported by several documents entered into evidence by plaintiff entitled: "DOCTOR'S STATEMENT FORM." These documents represented the cost to plaintiff for treatment by her chiropractors and itemized the charge for specific services rendered and therapy performed. An examination of these documents indicates no charge for treatment designated on the forms for "Electro-Therapy." Consequently, assuming it would not have been error for the trial court to give defendant's request to charge, since there is no evidence indicating that expenses for plaintiff's "electro-therapy" were included in the jury's verdict, it does not follow that the trial court's failure to give defendant's request to charge requires a new trial.

"Unless the refusal to give the charge requested was both erroneous and harmful to the [defendant], [she] cannot successfully complain. The burden is on [defendant] of showing both error and harm, and for the reasons [herein] stated we do not think this has been done." American Fidelity etc., Co. v. Farmer, 77 Ga.App. 192, 194(2), 48 S.E.2d 141. This enumeration of error is without merit.

3. Defendant contends in her third enumeration of error that the trial court erred in failing to grant her motion for directed verdict on the issue of property damages. Defendant argues that plaintiff failed to carry her burden of proving damages sustained to her automobile.

" 'There are two ways to prove damages to a motor vehicle caused by a collision: (1) By showing the difference between the fair market value...