Goss v. Total Chipping, Inc.

469 S.E.2d 855, 220 Ga. App. 643, 96 Fulton County D. Rep. 1349, 1996 Ga. App. LEXIS 314
CourtCourt of Appeals of Georgia
DecidedMarch 13, 1996
DocketA96A0051
StatusPublished
Cited by21 cases

This text of 469 S.E.2d 855 (Goss v. Total Chipping, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goss v. Total Chipping, Inc., 469 S.E.2d 855, 220 Ga. App. 643, 96 Fulton County D. Rep. 1349, 1996 Ga. App. LEXIS 314 (Ga. Ct. App. 1996).

Opinion

Smith, Judge.

After a vehicular accident in which a car driven by Mary Gail Goss struck the rear of a wood chip hauling truck, Goss and her husband brought suit against the owner of the truck, Total Chipping, Inc., and the driver, Steven Hesson. Goss alleged she was following the truck when it stopped suddenly after traversing a railroad crossing. She contended she was unable to stop in time to avoid the collision because the truck’s brake lights were not functioning. The complaint, as amended, sought damages resulting from the incident, including pain and suffering, past and future medical expenses, lost wages, and punitive damages. Her husband sought damages for loss of consortium. At trial, the jury returned a verdict in favor of Goss in the amount of $3,300 on all her claims and in favor of the defendants on her husband’s consortium claim. Judgment was entered on the jury’s verdict, and. the Gosses appeal following the denial of their motion for new trial.1

1. Goss presented evidence of medical expenses and lost wages in excess of $33,000, but the verdict awarded only ten percent of that amount; the Gosses therefore contend the verdict was “completely contrary to the evidence.” Although this issue was enumerated as error, the Gosses have failed to present argument or citation of authority on this issue. Pursuant to Court of Appeals Rule 27 (c) (2), it is deemed abandoned.

2. The Gosses contend the trial court erred in excluding evidence from two former employees of Total Chipping. The two witnesses formerly drove trucks for Total Chipping and would have testified that the trucks were poorly maintained and unsafe, that continuing problems existed with the lights and the brakes, and that on several occasions the owner had instructed them to drive the trucks after the drivers had called his attention to these problems.

[644]*644(a) The Gosses contend that this evidence of poor maintenance practices in the past was relevant to show causation, a previously existing dangerous condition, and a course of conduct by Total Chipping. We do not agree. As a general rule in negligence actions, evidence of similar acts or omissions is not admissible. In actions to recover damages sustained in vehicular collisions, the issue before the court is whether any of the parties was negligent. That must be ascertained in each incident from the circumstances surrounding that incident, not by the reputation or past acts of the parties. Wright v. Dilbeck, 122 Ga. App. 214, 217 (176 SE2d 715) (1970). An exception to this rule exists if the evidence tends to prove some pertinent fact in the case on trial, such as showing knowledge of the defect claimed or causation, if it rebuts a particular contention regarding how the accident happened or shows that the same dangerous condition existed previously. Gunthorpe v. Daniels, 150 Ga. App. 113 (1), 114 (257 SE2d 199) (1979). Even under this exception, the evidence not only must be relevant but must also be examined to ensure that it will not consume too much time, confuse the issues, or present a potential for undue prejudice or unfair surprise. Dimarco’s, Inc. v. Neidlinger, 207 Ga. App. 526 (1), 527 (428 SE2d 431) (1993).

“Generally speaking, questions of relevance are within the domain of the trial court, and, absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal. The rule is usually stated that the judge may exercise his discretion in excluding relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.” (Citations and punctuation omitted.) Kane v. Cohen, 182 Ga. App. 485, 486 (2), 487 (356 SE2d 94) (1987).

In this case, the excluded evidence showed no prior accidents caused by faulty maintenance, and no other evidence of prior accidents caused by poor maintenance was presented or offered. The excluded testimony did not pertain to the truck driven by Hesson on the date of the accident in issue. In addition, the parties’ differing contentions regarding the manner in which the accident occurred were fairly presented to the jury and supported by other evidence. As a consequence, evidence of Total Chipping’s poor maintenance practices in the past was only marginally related to any fact in this case, and the trial court properly concluded that the probative value of the excluded evidence was far outweighed by its prejudicial effect.

The Gosses argue that similar past transaction evidence was held admissible in Central of Ga. R. Co. v. Butts, 211 Ga. App. 619 (440 SE2d 218) (1994) and Seaboard Coastline R. Co. v. Delahunt, 179 Ga. App. 647, 650 (8) (347 SE2d 627) (1986). Their reliance upon these [645]*645cases is misplaced. Both cases may be distinguished on their facts. In Butts, we emphasized that such evidence is generally inadmissible, but in that case, objection to its admission was waived. Id. at 619-620 (1). In Delahunt, the error enumerated was not the admission of the testimony but the failure of the trial court to rule on the motion to strike the challenged testimony about past transactions. Id. at 650 (8). Similarly, the line of cases typified by Browning v. Paccar, Inc., 214 Ga. App. 496 (448 SE2d 260) (1994), relied upon by the Gosses, has no application here. Those cases involve dangerous defects in manufacturing or packaging mass-produced items. A defect in one such item in its design or manufacture would necessarily occur in thousands of identical products. In such cases, proving that the defect existed in other products and caused accidents in the past is highly relevant to proving the facts of the case on trial. That is not so here. Even if it proves a pattern or course of conduct, establishing that Total Chipping was negligent in repairing other trucks in the past does not bear on the issue of what caused this particular collision.

(b) The Gosses also maintain that the evidence was admissible for the purpose of impeaching the testimony of Hesson and James Ware, the principal shareholder of Total Chipping. It is true that a witness may be impeached by disproving the facts testified to by him. OCGA § 24-9-82. But a witness may not be impeached with regard to a matter irrelevant to the issues being tried. “A witness’ possible lack of credibility concerning matters otherwise irrelevant to any issue in dispute does not thereby become material to the case as an issue of impeachment. [Cits.]” E. H. Siler Realty &c. Broker v. Sanderlin, 158 Ga. App. 796, 797 (1), 798 (282 SE2d 381) (1981). We have held that the trial court properly ruled the excluded testimony insufficiently relevant to the issues in this case to be admitted. It was therefore not admissible for impeachment purposes.

3. The Gosses assert the evidence was also admissible on the limited issue of punitive damages, and they argue that the trial court erred in failing to admit this evidence in the liability phase of the trial, as directed by OCGA § 51-12-5.1 (d) (1). We do not agree.

Since punitive damages were sought, OCGA § 51-12-5.1

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Bluebook (online)
469 S.E.2d 855, 220 Ga. App. 643, 96 Fulton County D. Rep. 1349, 1996 Ga. App. LEXIS 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goss-v-total-chipping-inc-gactapp-1996.