Pouncey v. Adams

• Citation: 206 Ga.App. 126,424 S.E.2d 376
• Decision Date: 02 November 1992
• Docket Number: No. A92A1364,A92A1364
• Parties: POUNCEY v. ADAMS.
• Court: Georgia Court of Appeals

Page 376

424 S.E.2d 376

206 Ga.App. 126

POUNCEY v. ADAMS.

No. A92A1364.

Court of Appeals of Georgia.

Nov. 2, 1992.

Wesley Williams, Blairsville, for appellant.

Forrester & Brim, Weymon H. Forrester, Gainesville, for appellee.

BIRDSONG, Presiding Judge.

Appellant/plaintiff Janice Pouncey appeals from the judgment entered against her and in favor of appellee/defendant Ross W. Adams. Appellant brought suit seeking damages for injuries sustained when the automobile in which she was a passenger struck appellee's horse. The horse had escaped from its enclosed pasture, crossed a public highway, and was struck by the automobile in which appellant was riding. Held:

1. Appellant asserts the trial court erred in admitting evidence, over objection on the grounds of lack of relevance and violation of the collateral source rule, that appellant took sick leave from her employment to avoid wage loss. Pretermitting this issue is the issue whether any such error would have been prejudicial had it occurred as enumerated. Appellant did not pose any specific foundation objection as to the use of the statement in her deposition for impeachment purposes, or specifically object to impeachment on any other ground. Therefore, these objections are waived. See Gully v. Glover, 190 Ga.App. 238(4), 378 S.E.2d 411.

The verdict rendered in this case was in favor of the appellee/defendant; this is not a case where verdict was rendered for appellant/plaintiff and the damage award was either zero or of some inadequate amount. The evidence pertaining to the use of sick leave either was relevant to the issue of impeachment or it was not. Assuming without deciding that the admitted evidence was relevant, albeit doubtful, as to the question of impeachment (as argued by appellee), the trial court would not have abused its discretion in admitting it (see generally Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga.App. 573, 575(2), 377 S.E.2d 15), and no error occurred. West v. Nodvin, 196 Ga.App. 825, 828(3b), 397 S.E.2d 567. It is well established that if evidence is duly admissible under any legitimate evidentiary theory, it should be admitted even though it would not qualify for admission under one or more other evidentiary theories. Boatright v. State, 192 Ga.App. 112, 116(6), 385 S.E.2d 298. In such circumstances, the objecting party's remedy is to seek appropriate limiting instructions as to the evidence in question. Assuming, however, the evidence pertained only to the issue of damages and was admitted in violation of the collateral source rule (as argued by appellant), then the error occurring nevertheless would be harmless in this instance. Where an error in the giving of a charge or in the admission or exclusion of evidence relates only to the issue of damages, and the jury finds the defendant not liable, the error is harmless because it does not affect the verdict. Whelchel v. Thomas Ford Tractor, 190 Ga.App. 156(1), 378 S.E.2d 510; accord Barnes v. Wall, 201 Ga.App. 228, 230(3), 411 S.E.2d 270.

2. Appellant asserts the trial court erred in charging the jury on the issue of permissible inference. Appellant took exception to the charge on the grounds it is an incorrect statement of law and that it was confusing and misleading to the jury. Assuming without deciding that this broad exception, which is lacking of any specificity as to why the charge was legally incorrect, confusing or misleading, is adequate to preserve the issue of charging error on appeal, we find that, assuming charging error occurred, it was harmless in this case.

The trial court charged the jury pertinently as follows: "The duty placed upon [a livestock] owner by law is to exercise ordinary care to keep his livestock from straying or running at large beyond the limits of the owner's property. In cases where a person is injured or damaged by livestock straying or running at large there arises a permissible inference authorized by the mere fact of the running at large by the animal that the owner of the livestock was negligent in allowing the stock to run at large or to stray. But when the owner introduces evidence which would authorize a finding that he had exercised ordinary care in the maintenance of the stock, that permissible inference disappears. It is thus for you, the jury, to determine whether or not the [appellee/defendant] has introduced sufficient evidence to overcome the permissible inference of negligence. If you find that he has not, you would be authorized to return a verdict in favor of the [appellant/plaintiff]. If you find on the other hand that he has, you would be obligated to return a verdict in favor of [appellee/defendant] unless you have found ... the [appellee/defendant] otherwise negligent in such a way as to proximately cause injuries to the [appellant/plaintiff]." (Emphasis supplied.) Thereafter, the trial court instructed the jury that the burden of proving each element of the claim was on appellant/plaintiff.

In support of this enumeration appellant relies primarily upon the language contained in Miller v. Miller, 258 Ga. 168, 170, n. 6, 366 S.E.2d 682 and cases cited therein. She argues that she was harmed when the jury was instructed that the permissible inference would disappear when rebutted, and in charging on permissible inference rather than on the law of presumptions.

Appellee asserts that the permissible inference would in fact disappear if rebutted. This contention is tacitly supported by the seminal case of Porier v. Spivey, 97 Ga.App. 209(1c), 102 S.E.2d 706 and its progeny, although all of these cases precede Miller, supra, and none of them concerns the question of what constitutes a correct charge to the jury regarding this issue. Accord Nichols v. Frey, 185 Ga.App. 829, 366 S.E.2d 212; Wilkins v. Beverly, 124 Ga.App. 842, 186 S.E.2d 436; L & N R. Co. v. Moreland, 122 Ga.App. 850, 854(1), 178 S.E.2d 904; Green v. Heard Milling Co., 119 Ga.App. 116(1), 166 S.E.2d 408.

We have frequently cautioned that, although the language used in an appellate decision may embody sound law, it is not always appropriate to employ such language in instructing the jury. Griffin v. State, 154 Ga.App. 261, 263(2), 267 S.E.2d 867. Nevertheless, in determining whether an instructional error has occurred, charges must be examined in their entirety. See generally Jordan v. Santa Fe Engineering, 198 Ga.App. 600, 602(2a), 402 S.E.2d 304.

We find no merit in the argument that reversible error occurred when the trial court charged the jury in language of permissive inference rather than presumption of fact. Presumptions of fact are exclusively questions for the jury to decide by the ordinary test of human...