Whelchel v. Thomas Ford Tractor, Inc.

• Decision Date: 02 February 1989
• Docket Number: No. 77450,77450
• Citation: 190 Ga.App. 156,378 S.E.2d 510
• Parties: WHELCHEL v. THOMAS FORD TRACTOR, INC.
• Court: Georgia Court of Appeals

Page 510

378 S.E.2d 510

190 Ga.App. 156

WHELCHEL v. THOMAS FORD TRACTOR, INC.

No. 77450.

Court of Appeals of Georgia.

Feb. 2, 1989.

James M. Walters, Atlanta, for appellant.

Roland H. Stroberg, Gainesville, for appellee.

BIRDSONG, Judge.

Appellant/plaintiff filed notice of direct appeal "from the Order denying Plaintiff's Motion for New Trial." His motion for new trial was based on the general grounds, and was subsequently amended to include assertions of error, by admitting over objection, evidence of collateral source and by charging the jury as to the collateral source rule of OCGA § 51-12-1(b).

Appellant/plaintiff was injured in an accident while driving a tractor with a cutter, which had been sold and connected together by appellee several years earlier. The injury occurred on May 7, 1982; pursuant to OCGA § 9-2-61, suit was filed on November 1, 1985. The new collateral source rule of OCGA § 51-12-1(b) became effective on July 1, 1987. Held:

1. Appellant asserts that the trial court erred in allowing the introduction of collateral source evidence and in subsequently charging the court as to the collateral source rule of OCGA § 51-12-1(b).

The jury was informed of certain Social Security benefits and workers' compensation received by the appellant as a result of injuries sustained in the accident. The charge of the court was as follows: "[Y]ou ... have heard evidence ... the plaintiff has compensation or other benefits available to him as a result of his injuries ... you may consider such ... compensation or benefits ... in making any award of damages, but you do not have to consider it." (Emphasis supplied.)

The admission of collateral source evidence and the giving of the above charge were errors, as the collateral source rule of OCGA § 51-12-1(b) cannot be given retroactive effect and operates prospectively only. Powell v. Stephens, 258 Ga. 149, 368 S.E.2d 518; Polito v. Holland, 258 Ga. 54, 365 S.E.2d 273. However, "[i]t is an old and sound rule that error to be reversible must be harmful. [Cit.] Appellant must show error which has hurt him." Leverett v. Flint Fuel, 183 Ga.App. 75, 78(3), 357 S.E.2d 882; see Jackson v. Kight & Sons, 159 Ga. 584(3), 126 S.E. 379.

The above charge limited the jury's discretionary consideration of the admitted collateral source evidence to the question of damages. It is well-settled that "the giving of a charge ... or in the admission or exclusion of evidence, which go only to the matters of damages or the measure of damages, are harmless and afford no ground for reversal where a verdict was returned in favor of the defendant." Maloy v. Dixon, 127 Ga.App. 151, 156, n. 2, 193 S.E.2d 19, and cases therein cited; see Johnson v. Amerson, 179 Ga.App. 75(2), 345 S.E.2d 94. Appellant, however, invites this court to speculate that the jury would ignore the limited purpose for which the collateral source evidence was admitted and would consider it in determining the question of liability. We will not engage in such unwarranted speculation regarding the conduct of the jury, as "[t]his court is a court for the correction of errors and its decision must be made on the record ... and not upon the briefs of counsel." Jenkins v. Bd. of Zoning, 122 Ga.App. 412(2), 177 S.E.2d 204. This assertion of errors is without merit.

2. Appellant also asserts that the trial court erred in refusing to charge the jury on the theory of products liability. We find that the appellant has waived this issue.

In this case, the appellant...