Jorden v. Johnson

479 S.E.2d 175, 223 Ga. App. 875, 96 Fulton County D. Rep. 4370, 1996 Ga. App. LEXIS 1308

• Court: Court of Appeals of Georgia
• Decided: December 5, 1996
• Docket: A96A1584
• Status: Published

Opinions

Beasley, Chief Judge.

Jordan appeals from the denial of her motion for new trial, in this personal injury case arising from an automobile collision, on the grounds that Johnson violated the court’s order on a motion in limine and that the testimony elicited in response to Johnson’s violation went to the ultimate issue of negligence.

Jordan submitted a written motion which apparently was addressed in chambers before trial without the court’s order recorded. The motion sought an order “that there be no evidence offered or alluded to concerning the purported cause of the subject incident as noted by the investigating officer in the subject accident report... or the fact that plaintiff/defendant was cited as a contributing factor to the accident.” After trial, the court entered an order stating the motion “was in effect” and that there was no objection to it by defendant.

On direct examination of the investigating officer, plaintiff Jordan elicited the officer’s testimony as to what each party told her about how the collision occurred. On cross-examination, Johnson asked the officer whether, from information gained at the scene, she was “able to confirm or deny either Ms. Jordan’s story or Mr. Johnson’s story.” She answered, “No sir.” Johnson then asked: “Were you able to make any determination as to who caused this accident?” To this she gave the same answer. The court’s post-trial order stating the plaintiff’s motion was “in effect” does not state that these questions or answers exceeded any limitation.

Jordan has supplied this Court with only an excerpt of that portion of the transcript showing the direct and cross-examination of the investigating officer. An appellant may choose to have only a portion of the record below transmitted to this Court.’ OCGA §§ 5-6-37, 5-6-41; see Drummond v. Gladson, 219 Ga. App. 521, 524 (2) (465 SE2d 687) (1995) (Beasley, C. J., concurring specially). This does not relieve an appellant from the obligation to demonstrate error by the record. See White v. Arthur Enterprises, 219 Ga. App. 124, 125 (2) (464 SE2d 225) (1995); Johnson v. Bruno’s, Inc., 219 Ga. App. 164, 167 (4) (464 SE2d 259) (1995). One who complains that the opposing party violated a court’s order on a motion in limine must show that the court ruled so as to limit the evidence in the particulars claimed. See Bentley v. B. M. W., Inc., 209 Ga. App. 526, 527-528 (1) (433 SE2d 719) (1993); Arnold v. Arnold, 197 Ga. App. 103, 106 (2) (397 SE2d 724) (1990). It is also the appellant’s responsibility to show, as in appeals based upon other occurrences, that the violation of a motion in limine was harmful. See Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (1) (345 SE2d 56) (1986); Frink v. State, 177 Ga. App. 604, 607 (1) (340 SE2d 631) (1986).

Jordan has not demonstrated that the questioning violated any limits the court imposed in response to the motion. The court’s contemporaneous order on the motion, if one exists, is not included in the record. The post-trial declaration that the motion was “in effect” does not state the court rendered any order and suggests there may have been none; the matter was “discussed” and the defense made “no objection.” If there was a court ruling on the motion in limine, the post-trial order does not reveal what that may have been. Nor does the post-trial order indicate in any way that the questions complained of violated any previous ruling. Rather, as the court denied Jordan’s motion for new trial in which she raised the alleged violation of the motion in limine, it appears the court did not find the questioning violated its order or that, if it did, the improper question or questions, which elicited no harmful evidence, did not prejudice plaintiff so as to require a new trial.

If we must judge the matter solely by the request in the motion, the questioning did not offend the motion; there was no questioning about any cause noted on the accident report or any citation given to Jordan. There is no indication that the accident report itself was placed in evidence and the record does not show that the questioning exceeded a court-ordered boundary.

Nor is there any indication the testimony elicited was harmful. It in no way suggested that Jordan was at fault. Although she argues it was harmful because it left the jury with “no other reasonable deduction but to conclude that either both parties were equally at fault or that neither party was at fault,” that is not the case. The only reasonable inference is that the officer had nothing to say on the matter of fault; the jury was left to decide the issue on all the other evidence.

An investigating officer is permitted to testify as to what she observes at an accident scene and give an opinion based upon that evidence about how the collision occurred but not about which party was at fault. Emory v. Dobson, 206 Ga. App. 482, 483-484 (426 SE2d 50) (1992). Here the officer’s responses merely revealed that she had not formed any opinion about how the collision occurred, or as to which party caused the collision. The questions and answers did not invade the jury’s role ih deciding the ultimate issue.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J, concur specially.