State Farm Mut. Auto. Ins. Co. v. Hudson, A94A2163

CourtUnited States Court of Appeals (Georgia)
Citation450 S.E.2d 286,215 Ga.App. 218
Docket NumberNo. A94A2163,A94A2163
Decision Date14 November 1994

Gilchrist M. Gibson, Clarkston, for appellant.

Waymon Sims, Atlanta, for appellee.


Willie Hudson drove a dump truck that collided with an automobile driven by Rhonda Murray. State Farm Mutual Automobile Insurance Company insured Murray. State Farm sued Hudson, seeking subrogation for money it allegedly paid to cover damage to, and loss of use of, Murray's car. The trial court granted a directed verdict to Hudson because State Farm failed to present sufficient evidence of damages. State Farm appeals.

1. State Farm enumerates the trial court erred in refusing to allow its claim adjuster's testimony about a purported settlement check executed by State Farm to pay for the total loss of Murray's vehicle. State Farm's argument under this enumeration of error, however, does not address the court's refusal to allow the claim adjuster's testimony; rather, State Farm argues the court erroneously refused to admit a copy of the check into evidence either as a business record or as secondary evidence because the original check was not accessible. Because State Farm's specific enumeration of error concerning the court's refusal to allow the claim adjuster's testimony is not supported by any argument or citation of authority, it is deemed abandoned. See Court of Appeals Rule 15(c)(2); Stinson v. Allstate Ins. Co., 212 Ga.App. 179, 182(3), 441 S.E.2d 453 (1994).

State Farm's arguments regarding the trial court's refusal to admit into evidence a copy of the check are not contained in the enumeration of error and therefore shall not be considered by this court. "On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration." (Citations and punctuation omitted.) Batten v. Chrysler Corp., 211 Ga.App 173, 175(2), 438 S.E.2d 647 (1993). Moreover, we cannot consider State Farm's arguments because the record does not contain the purported copy of the check. See Dunwoody-Woodlands Condo. Assn. v. Hedquist, 199 Ga.App. 91(1), 403 S.E.2d 893 (1991).

2. State Farm contends the court erred in refusing to allow the claim adjuster to give his opinion of the value of Murray's car both before and after the collision. State Farm's failure to make 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 check is without merit. Because State Farm never successfully introduced the check into evidence, any testimony concerning its contents was inadmissible hearsay. See OCGA § 24-3-1; In the Interest of J.C., 163 Ga.App. 822(1), 296 S.E.2d 117 (1982).

4. State Farm asserts the court erred in granting Hudson's motion for a directed verdict due to insufficient evidence of damages. "If there is any evidence creating a material issue of fact, a motion for a directed verdict cannot be granted." (Citations and punctuation omitted.) Reeb v. Daniels Lincoln-Mercury Co., 193 Ga.App. 817, 819(1) (a), 389 S.E.2d 367 (1989); OCGA § 9-11-50(a). Contrary to the trial court's ruling in the current case, there is some evidence creating a material issue of fact as to damages.

Because State Farm did not undertake to have repairs made to the automobile after the collision, the proper measure of damages is the difference in the before and after value of the vehicle. See Reeves v. Crawford, 185 Ga.App. 518, 364 S.E.2d 895 (1988). "Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if [she] has had an opportunity for forming a correct opinion.... The owner of property is considered to be qualified to state [her] opinion as to value." (Citations and punctuation omitted.) Godowns v. Cantrell, 186 Ga.App. 100, 366 S.E.2d 415 (1988). Here, Murray testified without objection that in her opinion the value of her car prior to the collision was approximately $16,000.

In addition to this direct evidence of the car's value prior to the collision, Murray also testified...

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5 cases
  • Magnan v. Miami Aircraft Support, Inc.
    • United States
    • Georgia Court of Appeals
    • 13 Julio 1995 either argument or citation of authority, it is abandoned under Court of Appeals Rule 27(c)(2). State Farm Etc. Ins. Co. v. Hudson, 215 Ga.App. 218(1), 450 S.E.2d 286 (1994) (decided under former Court of Appeals Rule 2. Magnan and Becker next contend the trial court erred in disallowing......
  • Cantrell v. Northeast Ga. Medical Center
    • United States
    • Georgia Court of Appeals
    • 2 Noviembre 1998 so precludes our review of this contention. Barron v. Barron, 185 Ga. 346(2), 194 S.E. 905 (1938); State Farm &c. Ins. Co. v. Hudson, 215 Ga.App. 218, 219(2), 450 S.E.2d 286 (1994); Ellis v. Cameron & Barkley Co., 171 Ga.App. 211, 212(2), 319 S.E.2d 38 Although this situation did not spe......
  • Redwine v. Windham
    • United States
    • Georgia Court of Appeals
    • 15 Febrero 1999
    ...evidence of the damages caused by the filing mistake, it was error to direct a verdict on this claim. State Farm Mut. Auto. Ins. v. Hudson, 215 Ga.App. 218, 220(4), 450 S.E.2d 286 (1994). Judgment affirmed in part and reversed in JOHNSON, C.J., and BARNES, J., concur. 1. Redwine contends th......
  • Zohoury v. Zohouri
    • United States
    • Georgia Court of Appeals
    • 3 Octubre 1995
    ...made in any enumeration of error, and their enumerations of error cannot be enlarged to include it. State Farm, etc., Ins. Co. v. Hudson, 215 Ga.App. 218, 219(1), 450 S.E.2d 286 (1994). Finally, appellants' complaint regarding the trial court's imposition of a supersedeas bond is meritless ......
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