Purvis v. Tatum, 48655

• Decision Date: 18 February 1974
• Docket Number: No. 48655,No. 3,48655,3
• Citation: 131 Ga.App. 116,205 S.E.2d 75
• Parties: Clarence H. PURVIS v. Jo Wayne TATUM
• Court: Georgia Court of Appeals

Page 75

205 S.E.2d 75

131 Ga.App. 116

Clarence H. PURVIS v. Jo Wayne TATUM.

No. 48655.

Court of Appeals of Georgia, Division No. 3.

Feb. 18, 1974.

Rehearing Denied March 5, 1974.

M. Francis Stubbs, Reidsville, B. Daniel Dubberly, Jr., Glennville, for appellant.

Sharpe, Hartley & Newton, Hugh B. McNatt, Lyons, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

C. H. Purvis brought a complaint against Jo Wayne Tatum seeking recovery of damages to complainant caused by the injuries received as the result of the alleged negligence of the defendant in driving a motor vehicle into the rear of complainant's motor vehicle. The claim for damage to complainant's motor vehicle was stricken. Upon the trial, the jury found in favor of the complainant in the amount of $5,000. Complainant filed a motion for new trial and appeals to this court from judgment on the verdict. Held:

1. A juror was related within the prohibited degree (Code § 59-716) to two partners of six in a partnership known as Tatum Brothers, all of the partners being named Tatum. This partnership employed the defendant in the present case, and the partnership's liability insurance carrier was defending the action. Neither the firm nor its members were parties to the action, nor does it appear that the partnership or its members have any financial or business benefit or detriment accruing to them depending upon the outcome of the case. It would appear, therefore, that the juror was not disqualified because of relationship to a person or persons 'interested in the outcome' of the case within the meaning of this statute. Furthermore, the plaintiff's attorney, after the selection of the jury and prior to hearing testimony, when discussing with the trial judge whether this juror's employment by the Tatum Brothers would disqualify him, at which point the court inquired whether the juror was related to the partners, plaintiffs counsel affirmatively stated to the court that the juror was not related to them. Having misled the court and by such action prevented further inquiry by the court as to such relationship to Tatum Brothers, appellant is estopped to now claim he did not know the juror was related. There is a decided difference in stating relationships did not exist and in stating one did not know whether it did or did not exist. See Kennedy v. State, 191 Ga. 22, 23(6), 11 S.E.2d 179. Further, the affidavit of the attorney for the plaintiff presented on the motion for new trial, while delineating the bare facts, fails to state what inquiry, if any, he made in reference thereto, or disclose by factual statements any diligent effort on his or his client's part to ascertain the truth, nor does it disclose that he and his client did not know of such relationship at the time of trial. See Jennings v. Autry, 94 Ga.App. 344(5), 94 S.E.2d 629 and Williams v. State, 206 Ga. 107(2), 55 S.E.2d 589. There was no error in overruling these grounds of the motion for new trial.

2. Just prior to counsel's opening statements to the jury, the clerk of the trial court requested of the trial judge that he might be excused to go to his office in the courthouse to attend to some business there, subject to the call of the court. The trial judge granted the request. See Code § 24-2714(2). It seems apparent from the transcript this was done in the presence and hearing of appellant's counsel (and counsel makes no contention to the contrary). In the absence of any objection by appellant or his counsel or his showing of harm therefrom, we are constrained to hold that the error, if one, is a harmless error.

3. The trial judge, over plaintiff's objection, required plaintiff to testify before reading into the evidence the deposition of one of the plaintiff's doctors or to be sequestered with the other witnesses during such reading. Plaintiff testified first. This was a matter within the discretion of the trial judge and we find no error therein. Tift v. Jones, 52 Ga. 538(4); Davis v. Atlanta Coca-Cola Bottling Co., 119 Ga.App. 422, 423, 167 S.E.2d 231.

4. There was evidence adduced in the case that plaintiff was treated by certain doctors for the alleged injuries occasioned by the defendant, and also spent time in certain hospitals. There was also evidence that he was treated by certain doctors and spent time in a hospital for an operation not connected with the alleged injuries sued for. His income tax returns for the years subsequent to the alleged injuries sued for claimed deductions for doctors bills not referred to and about which no evidence was introduced. The attorney for the defendant, while commenting on the information in plaintiff's tax returns for one of the years for which he was claiming special damages for doctors bills, etc., argued 'Let's move on to '70. He was out a month in '70 and still made more money than he made the year before and he did that . . . did that at a time when he obviously was, over these periods of time, seeking and getting considerable medical attention because if you'll note here on his 1968 return, in 1968, he saw Doctors Drake . . . C. H. Drake, Doctor Hubert Darby, Doctor Curtis 'Haymes,' Doctor 'Caral' Brennen, Doctor L. H. Morgan, Doctor R. B. Gottschalk, and Doctor L. R. Lanier and Doctor D. W. Fillingham, and Doctor J. Harry Duncan and was at Memorial Medical Center and the Howard Clinical Laboratory. Now, that was in 1968. Now, all of those don't relate to this accident. All right, in 1969, he experienced all that income according to these medical deductions. Uh, he's got a page here that's Strickland Pharmacy, Central Pharmacy, Doctor C. H. Drake, Curtis Hames, Brennan, Doctor Scarbrough, Howard Clinical Laboratory, Doctor Morgan, Doctor Hubert Darby, Ophthalmology...