Parks v. Consolidated Freightways, 76051

• Citation: 370 S.E.2d 827,187 Ga.App. 576
• Decision Date: 21 June 1988
• Docket Number: No. 76051,76051
• Parties: PARKS et al. v. CONSOLIDATED FREIGHTWAYS et al.
• Court: United States Court of Appeals (Georgia)

Page 827

370 S.E.2d 827

187 Ga.App. 576

PARKS et al. v. CONSOLIDATED FREIGHTWAYS et al.

No. 76051.

Court of Appeals of Georgia.

June 21, 1988.

Clayton Sinclair, Jr., Atlanta, for appellants.

Edgar A. Neely III, Randall H. Davis, Atlanta, for appellees.

BEASLEY, Judge.

Terry Parks, his mother-in-law Mrs. Reid, his wife, and his daughter through her representatives, appeal from the verdict and judgment in favor of defendants Consolidated Freightways, Horne, and Safeco Insurance Company. Parks, Reid, and the child were injured in a traffic accident involving a Consolidated tractor-trailer driven by Horne. Parks was rendered a quadraplegic. Safeco posted the bond required by OCGA §§ 46-7-12(a), (c) & 46-7-58(a), (c).

The evidence supporting the verdict showed that Parks was driving a pickup truck west on Cascade Road with his then three-year-old daughter in the center and Mrs. Reid in the passenger's seat. No one was wearing seatbelts. He stated he saw a big blur in front of the truck, panicked, and jammed on the brakes, causing the truck to go into a skid and hit the east-bound tractor-trailer driven by Horne. The dispute as to liability arose over Parks' contention that the tractor-trailer had veered over the centerline into his lane, causing his reaction and the wreck. He contended that the initial impact occurred in his lane. Horne and two eye witnesses saw the pickup truck weave back and forth more than once and cross the centerline. One saw the child standing up in the seat seconds before impact. All stated that the impact occurred in the eastbound lane and that Horne took evasive action.

Both sides also produced experts in accident reconstruction, although plaintiffs had never examined the vehicles except via photographs and only saw the scene three years after the accident. Defendants' had examined the vehicles and visited the scene within three weeks of the wreck.

1. Plaintiffs first complain that the trial court erroneously bifurcated the trial into liability and damages phases over their objection. In their written response to defendants' motion, plaintiffs contended that it was necessary for them to introduce expert medical evidence as to how the quadraplegia-producing injury occurred in order to support their version of the accident. There is, however, nothing in the record or transcript showing any proffer of this evidence.

The court ordered the issues tried separately pursuant to OCGA § 9-11-42(b). "Severance is largely a matter of discretion for the trial judge, and absent clear and manifest abuse of that discretion, it will not be interfered with on appeal." Wheels & Brakes v. Capital Ford Truck Sales, 167 Ga.App. 532, 533(1), 307 S.E.2d 13 (1983); Vitner v. Funk, 182 Ga.App. 39, 43(1), 354 S.E.2d 666 (1987). Bifurcating the issues of liability and damages was held appropriate in another vehicle collision case involving physical injuries and medical damages. Cline v. Kehs, 146 Ga.App. 350(1) & (2), 246 S.E.2d 329 (1978).

There was no error and plaintiffs have shown no harm from the bifurcation in any event.

2. The second enumeration claims error in the trial court's denial of plaintiffs' motion for j.n.o.v. or new trial due to the court's failure to answer or respond to a question posed by the jury during its deliberations.

After the jury began deliberating, it sent out the following question: "Must the jury assign negligence to either party involved?" Shortly after the court and counsel began discussing the response to be made, the jury indicated it had a verdict. It was returned on the special verdict form and revealed that the jury found all parties not negligent.

At the time the announcement was made that there was a verdict and before it was published, plaintiffs voiced no objection to the court's receiving the verdict without answering the jury's question. After the verdict was read, plaintiffs voiced their approval as to the form of the verdict and expressed no disapproval until their motion for new trial.

Sequence-wise, it is impossible for such an error to have been the subject of a motion for directed verdict, which is a prerequisite to its being considered in the motion for j.n.o.v. OCGA §§ 9-11-50(a) & (b). Further, it is not the proper subject of such a motion. OCGA § 9-11-50(a).

The failure to charge is a possible ground for a motion for new trial. OCGA § 5-5-24. However, plaintiffs were required to object to the trial court's refusal to instruct the jury before accepting the verdict if they wished that action. OCGA § 5-5-24(a); see Glenridge Unit Owners Assn. v. Felton, 183 Ga.App. 858, 860(6), 360 S.E.2d 418...