Seaney & Co., Inc. v. Katz

• Decision Date: 28 June 1974
• Docket Number: 3,No. 49078,Nos. 1,2,49078,s. 1
• Citation: 132 Ga.App. 456,208 S.E.2d 333
• Parties: SEANEY & COMPANY, INC. v. Susan E. KATZ
• Court: Georgia Court of Appeals

Page 333

208 S.E.2d 333

132 Ga.App. 456

SEANEY & COMPANY, INC. v. Susan E. KATZ.

No. 49078.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

June 28, 1974.

Rehearing Denied July 18, 1974.

Swift, Currie, McGhee & Hiers, Clayton H. Farnham, Atlanta, for appelleant.

Shulman & Shulman, Arnold Shulman, Alembik & Alembik, Aaron I. Alembik, Atlanta, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

The facts here are immaterial. Briefly, the parties entered into an oral contract for interior decorating services. Appellant subsequently terminated these services and dispute arose over the balance owed appellee. The jury found for the appellee. At the close of the evidence, and prior to final argument, appellant's counsel presented a written request to charge, and asked to be informed of the trial court's proposed action with respect to the request. It is alleged that the court refused. The actual presentation of the request and the court's reply were not reported by the court reporter. After the jury had retired, appellant's counsel discovered the omission and in an endeavor to confirm the court's alleged refusal, attempted to get the court to reiterate the alleged earlier refusal. A motion for new trial based on the failure of the trial court to inform counsel of its proposed action concerning the jury charges prior to argument as required by Code § 70-207(b) was denied.

It is not necessary to determine from the trial judge's responses to counsel's bifurcated questions after the jury retired whether he intended to convey simply that he did not give the charge, or whether he admitted that he failed to advise counsel as to whether he would give the charge pursuant to the request so made. Assuming that the judge did not inform counsel of his intentions and that request to do so was made, no reversal would be required because of appellant's failure to show harm or substantial prejudice resulted. Code § 70-207(b) is an adoption of Rule 21 of the Federal Rules of Civil Practice and decisions of federal courts are authoritative though not binding on the question of its construction. It has been held consistently by the federal courts that the failure to inform counsel of the court's proposed action on the refusal to charge is not reversible error per se, but that in order to warrant a reversal or new trial for failure to comply with this rule, prejudice must be shown. Dallas R. & Terminal Co. v. Sullivan (1940), C.A.5 Tex., 108 F.2d 581; Levin v. Joseph E. Seagram & Sons, Inc. (1946, C.A.7 Ill.) 158 F.2d 55, cert. Den. 330 U.S. 835, 67 S.Ct. 971, 91 L.Ed. 1282; Downie v. Powers (1951, C.A.10 Okl.) 193 F.2d 760; Gwinett v. Albatross S.S. Co. (1957, C.A.2 N.Y.) 243 F.2d 8, cert. den. 355 U.S. 828, 78 S.Ct. 40, 2 L.Ed.2d 41; Hardigg v. Inglett (1957, C.A.4 S.C.) 250 F.2d 895; Garland v. Material Service Corp. (1961, C.A.7 Ill.) 291 F.2d 861, 91 A.L.R.2d 832; Sablosky v. Paramount Film Distributing Corp. (1955, D.C. Pa.) 137 F.Supp. 929; Tyrill v. Alcoa S.S. Co. (1960, D.C.N.Y.) 185 F.Supp. 822; Finkle v. New York, N.H. & Hartford R. Co. (1960, D.D.Conn.) 26 F.R.D. 9; United States v. 2877.37 Acres of Land (1943, D.C. Tex.) 52 F.Supp. 696.

The burden is on the complaining appellant to show that he was harmed and it was not shown in this case. Obviously the party not complaining, the appellee, does not have the burden of showing that the party complaining was not in fact harmed. Furthermore, the enumeration of error going to the failure to charge the request was not argued and thus was abandoned.

Nothing contained herein should be construed as placing our approval on the failure of a trial judge to comply with statutory requirements.

Judgment affirmed.

BELL, C.J., EBERHARDT, P.J., and QUILLIAN and WEBB, JJ., concur.

DEEN, EVANS, CLARK and STOLZ, JJ., dissent.

STOLZ, Judge (dissenting).

'In all cases, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may present to the court written requests that it instruct the jury on the law as set forth therein. Copies of requests shall be given to opposing counsel for their consideration prior to the charge of the court. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but shall instruct the jury after the arguments are completed. The trial judge shall file with the clerk all requests submitted to him, whether given in charge or not.' Code Ann. § 70-207(b) (Ga.L.1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078).

While the majority opinion 'disapproves' of the trial judge's action, it affirms the case. In doing so, it has made the statute 'a toothless tiger,' 'a fish that cannot swim,' indeed, a law that it is not necessary to enforce. The statute makes it mandatory (using the word 'shall') for counsel to give copies of his written request to opposing counsel. The statute likewise makes it mandatory (again...