Parsons v. Harrison
| Decision Date | 04 October 1974 |
| Docket Number | No. 49463,No. 1,49463,1 |
| Citation | 211 S.E.2d 128,133 Ga.App. 280 |
| Parties | Labron PARSONS v. Roland HARRISON |
| Court | Georgia Court of Appeals |
Grubbs & Platt, J. M. Grubbs, Jr., Adele Platt, Marietta, Barnes & Little, Sam Little, Dalton, for appellant.
Mitchell, Mitchell, Coppedge & Boyett, Warren N. Coppedge, Jr., Dalton, for appellee.
Syllabus Opinion by the Court
This appeal is by a defendant motorist against whom a verdict was rendered in favor of a plaintiff who had sustained injuries in a collision between the motorcycle on which plaintiff was riding and the pick-up truck driven by defendant. The parties were proceeding in opposite directions on a two lane highway when defendant turned left into the path of the approaching motorcyclist to enter a side road and the plaintiff's motorcycle hit the right rear fender of defendant's vehicle. After denial of a new trial motion, this appeal followed from that judgment.
As appellant has succinctly stated in the form of appropriate questions the issues raised by his various enumerations of error, we will use appellant's seven questions as the basis of this opinion.
1. 'May the plaintiff inject the question and fact of insurance into his voir dire questioning of the jury?' Our answer as to the case at bar is to hold that there was no error in this particular case.
After the court had qualified the jurors as to Georgia Mutual Insurance Company, defendant's liability carrier, plaintiff's counsel used his voir dire on each panel to ask two additional questions addressed to the panel as a whole and not to each juror individually. The first was: 'The judge has asked you if you were presently an agent, employee or policyholder with Georgia Mutual Insurance Company; now, I would like to ask you if you have ever been an agent or employee of Georgia Mutual Insurance Company or any other insurance company?' The other was: 'Are there any of you that have ever worked as a claims agent for any insurance company?' In each instance defense objections accompanied by mistrial motions were overruled.
Appellant contends the trial court rulings on these two questions were error in that insurance was thereby injected into the case to the extent that prejudice was unfairly created. In addition to relying upon those cases cited in Black v. New Holland Baptist Church, 122 Ga.App. 606, 609, 178 S.E.2d 571, forbidding the admission of evidence relevant to liability insurance, defendant contends Whaley v. Sim Grady Machinery Co., 218 Ga. 838, 131 S.E.2d 181 and Weatherbee v. Hutcheson, 114 Ga.App. 761, 152 S.E.2d 715, entitle him to a new trial. These cases are not applicable here. Excepting for the voir dire questions there was no mention of insurance during the course of the trial. In the Whaley case the Supreme Court based its ruling upon the record having contained nothing to show any insurance coverage. In the Weatherbee opinion the fourth headnote does state that 'One qualification of the jury by the court concerning the possible relationships with an insurance carrier should suffice.' Nevertheless, the opinion at page 767, 152 S.E.2d at page 720, notes that 'It is unnecessary to decide whether this, standing alone, would require a reversal.' Of course, we recognize there may be sufficiently broad or other factors may arise and thereby additional questions from counsel might result in prejudice and therefore be error. That is not the situation in the instant case where one of the jurors responded affirmatively to the additional voir dire questions complained of.
Haston v. Hightower, 111 Ga.App. 87, 140 S.E.2d 525, is controlling of the case sub judice. There our court decided there was no abuse of discretion in permitting the prospective jurors to be questioned as to their insurance affiliations with a specific company insuring defendant and with its local agency. This court concluded there that under the wide latitude of questioning allowed by Code Ann. § 59-705 that 'Where, as here, interest of the insurance company is admitted, it cannot be said that counsel's examination extended beyond the permissible limits.' Under the facts and circumstances which existed in the case at bar we find no abuse of discretion by the trial court in having permitted these additional voir dire questions.
2. 'May the plaintiff inject the issue of insurance into his closing argument to the jury and argue matters not in evidence, or is a mistrial demanded by such actions?' Although appellant uses the quoted question as stating the issue, a reading of the record does not show that counsel committed the blunder thus asserted. Pages 132A, 132B and 132C of the transcript deal with the alleged error. These pages failed to show the actual argument made by plaintiff's counsel. It is pointed out with Watergate phrases in appellee's brief (page 10) that: 'A review of the entire argument of counsel pertaining to this issue is essential so that this court can glean the full contextual meaning without any expletives deleted nor unintelligible portions, nor lifted out phrases, nor gaps of silence, to blur the clear implications of that which was stated upon the trial of the case.' The trial court here ruled expressly that the argument was not suggestive of insurance and denied the mistrial motions. Fievet v. Curl, 96 Ga.App. 535, 537, 101 S.E.2d 181, 183.
3. The third question propounded by appellant's brief reads: 'Did the trial court err in failing to give defendant's request to charge Number 5 on evenly balanced evidence, it not being covered in the charge?' The wording of the requested charge was as follows: 'I charge you, that if you find the evidence is evenly balanced upon any issue in this case, then and in such event it would be your duty to resolve such issue against the party having the burden of proof upon such issue, in this particular case, the plaintiff.' The language of this request was taken substantially from Southern Ry. Co. v. Smalley, 116 Ga.App. 356, 358(3), 157 S.E.2d 530, but with the addition of the words 'in this particular case, the plaintiff.' In view of the fact that defendant asserted several affirmative defenses below, the added words rendered the request inapt and incorrect. 'The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.' Code § 38-103. See...
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