Rosequist v. Pratt

Decision Date03 September 1991
Docket NumberNo. A91A0881,A91A0881
Citation410 S.E.2d 316,201 Ga.App. 45
PartiesROSEQUIST v. PRATT.
CourtGeorgia Court of Appeals

Jan W. McKinney, for appellant.

Rogers, Magruder, Sumner & Brinson, J. Clinton Sumner, Jr., Dudley B. Magruder, Jr., Jefferson L. Davis, Jr., for appellee.

McMURRAY, Presiding Judge.

Frances Rosequist brought an action against Cecil Leonard Pratt alleging that he negligently drove a motor vehicle into the rear of a "moped" operated by plaintiff's 13-year-old child, Minda B. Rosequist, and wrongfully caused the child's death. Defendant admitted that he was involved in a collision with Minda B. Rosequist, but alleged that the child caused the collision when she "suddenly drove a 1986 Honda Spree directly into the path of the [vehicle defendant was operating]." The case was tried before a jury and the jury returned a verdict for defendant. This appeal followed the denial of plaintiff's motion for new trial. Held:

1. Plaintiff contends the trial court erred in granting defendant's motion in limine, excluding testimony that defendant offered to pay for Minda B. Rosequist's medical and funeral expenses.

Defendant filed a motion in limine and asserted that "[p]laintiff should be prohibited from offering evidence or referring in the presence of the jury to an allegation that defendant ... offered to take care of medical or funeral expenses of the decedent." 1 The trial court granted the motion at a pretrial hearing and stated that he "would deem [such a remark] to be in the nature of a settlement offer." Plaintiff's attorney responded as follows: "I would not deem it to be in the nature of a settlement offer. That's not the way it was offered. I deem it to be an admission against interest that took place with my client.... It was not saying anything like, 'We're going to settle it.' It was more in the nature of, 'Make sure you get her the best' type of thing; you know, 'and we'll take care of it.' " 2

Evidence of "activity constituting a voluntary offer of assistance made on the impulse of benevolence or sympathy should be encouraged and should not be considered as an admission of liability. 31A CJS 742, § 291; 2 Wigmore (3d Ed.) p. 159, § 283a." Gray v. Delta Air Lines, 127 Ga.App. 45, 52(3), 53, 192 S.E.2d 521. In the case sub judice, defendant's offer to pay Minda B. Rosequist's hospital and funeral expenses does not appear to have been made in a spirit of compromise or as an admission of legal liability for the child's death. On the contrary, the record shows that the statement was directed to the child's bereaved relatives a day after the collision. Under these circumstances, we find no error in excluding evidence that defendant offered to pay for Minda B. Rosequist's medical and funeral expenses. Utz v. Powell, 160 Ga.App. 888, 890(2), 288 S.E.2d 601. See Steverson v. Eason, 194 Ga.App. 273(3), 390 S.E.2d 424.

2. Plaintiff contends the trial court erred in excluding her accident reconstruction expert's testimony regarding the cause of the collision. This enumeration is without merit.

The record shows that plaintiff never offered proof of the expected opinion from her accident reconstruction expert. Consequently, there remains nothing for review. Anderson v. Jarriel, 224 Ga. 495, 496(3), 162 S.E.2d 322.

3. Error is enumerated in the trial court's refusal to admit evidence of Minda B. Rosequist's album of photographs and awards, arguing that this evidence was relevant as to prove the full value of the child's life.

" 'It is an old and sound rule that error to be reversible must be harmful.' (Citations and punctuation omitted.) Kolman, Inc. v. Burns, 191 Ga.App. 758, 759 (382 SE2d 702) (1989)." Ingram v. Peterson, 196 Ga.App. 888, 890(6), 891, 397 S.E.2d 141. In the case sub judice, the jury found for defendant on the issue of liability. Consequently, any error in excluding evidence as to the value of Minda B. Rosequist's life is harmless.

4. Plaintiff contends the jury's verdict was contrary to the evidence and strongly against the weight of evidence.

"It is well settled that such matters as negligence, ordinary care, comparative negligence, and assumption of risk are to be resolved by the jury. McKinney & Co. v. Lawson, 180 Ga.App. 550, 551 (349 SE2d 763) (1986); Eyster v. Borg-Warner, 131 Ga.App. 702 (206 SE2d 668) (1974). It is also the jury which assesses the credibility of witnesses and the weight to be assigned to the evidence. Young v. State, 232 Ga. 176 (205 SE2d 307) (1974); Armour v. State, 154 Ga.App. 740 (270 SE2d 22) (1980); Causey v. State, 154 Ga.App. 76 (267 SE2d 475) (1980)." Cullen v. Timm, 184 Ga.App. 80, 81(1), 360 S.E.2d 745. " 'The jury is the final arbiter of the facts and the verdict must be construed by the trial and appellate courts in the light most favorable to upholding the jury verdict.' Church's Fried Chicken v. Lewis, 150 Ga.App. 154, 159 (256 SE2d 916, 921) (1979)." Gorin v. FPA 2, P.C., 184 Ga.App. 239, 240, 361 S.E.2d 193.

In the case sub judice, defendant testified that he was attempting to pass a small Honda motorcycle on a rural highway when the driver (Minda B. Rosequist) of the...

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8 cases
  • Widner v. Brookins, Inc.
    • United States
    • United States Court of Appeals (Georgia)
    • 19 Febrero 1999
    ...as an admission of liability.' Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150, 416 S.E.2d 127 (1992); Rosequist v. Pratt, 201 Ga.App. 45, 46, 410 S.E.2d 316 (1991)." Id. at 694, 462 S.E.2d Moreover, it appears from the surrounding circumstances that Herschiel Brookins' statement ......
  • Thompson v. Hardy Chevrolet-Pontiac-Buick, Inc., CHEVROLET-PONTIAC-BUIC
    • United States
    • United States Court of Appeals (Georgia)
    • 6 Marzo 1992
    ...of proof regarding specific evidence excluded by the trial court. This omission makes guess-work of appellate review. See Rosequist v. Pratt, 201 Ga.App. 45(1) (n. 1), 410 S.E.2d 316. Nonetheless, we address this enumeration based on Hardy Chevrolet's request to exclude all testimony regard......
  • State Farm Mut. Auto. Ins. Co. v. Hudson
    • United States
    • United States Court of Appeals (Georgia)
    • 14 Noviembre 1994
    ...a proffer of the expected opinion from the claim adjuster precludes appellate review of this contention. See Rosequist v. Pratt, 201 Ga.App. 45, 46(2), 410 S.E.2d 316 (1991). 3. State Farm's claim that the court erred in striking testimony about the contents of the purported settlement chec......
  • Neubert v. Vigh, A95A0993
    • United States
    • United States Court of Appeals (Georgia)
    • 10 Octubre 1995
    ...as an admission of liability." Deese v. Carroll City County Hosp., 203 Ga.App. 148, 150, 416 S.E.2d 127 (1992); Rosequist v. Pratt, 201 Ga.App. 45, 46, 410 S.E.2d 316 (1991). Further, in Steverson v. Eason, 194 Ga.App. 273, 390 S.E.2d 424 (1990), the court held that statements made by the d......
  • Request a trial to view additional results
2 books & journal articles
  • Evidence - Marc T. Treadwell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-1, September 1996
    • Invalid date
    ...894. 113. Id. 114. Id. 115. Id. at 411, 467 S.E.2d at 894. 116. Henry v. Watkins, 219 Ga. App. 80, 81, 464 S.E.2d 215, 216 (1995). 117. 201 Ga. App. 45, 410 S.E.2d 316 (1991). 118. Marc T. Treadwell, Evidence, 44 MERCER L. REV. 213, 222-23 (1992). 119. 201 Ga. App. at 46, 410 S.E.2d at 318.......
  • Evidence - Marc T. Treadwell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-4, June 1997
    • Invalid date
    ...Moseley, 213 Ga. App. 875,447 S.E.2d 302 (1994) with Wood v. Morbark Indus., 70 F.3d 1201 (11th Cir. 1995). 20. See Rosequist v. Pratt, 201 Ga. App. 45, 410 S.E.2d 316 (1991); Neubert v. Vigh, 218 Ga. App. 693, 462 S.E.2d 808 (1996). 21. Fed. R. Evid. 106. 22. See United States v. Haddad, 1......

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