Starks v. Robinson

375 S.E.2d 86, 189 Ga. App. 168, 1988 Ga. App. LEXIS 1323
CourtCourt of Appeals of Georgia
DecidedOctober 14, 1988
Docket76545
StatusPublished
Cited by11 cases

This text of 375 S.E.2d 86 (Starks v. Robinson) 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
Starks v. Robinson, 375 S.E.2d 86, 189 Ga. App. 168, 1988 Ga. App. LEXIS 1323 (Ga. Ct. App. 1988).

Opinions

Beasley, Judge.

Plaintiff Starks appeals from a judgment entered on a jury verdict in his favor but not for the full amount claimed. He enumerates as error: 1) the trial court’s refusal to permit the voir dire examination of jurors as to counsel for the two uninsured motorist carriers; 2) the trial court’s comment on the evidence which plaintiff contends violates OCGA § 9-10-7; 3) the granting of a directed verdict as to one of the two defendants; 4) the trial court’s permitting counsel for defendant Robinson to argue to the jury how to apply the law of comparative negligence.

Plaintiff, riding a motorcycle, had just come over the top of a hill when he was confronted by two stopped automobiles which effectively blocked the road because the one driven by defendant Austin was in the left lane and the other driven by defendant Robinson was in plaintiff’s lane of travel on the right. Plaintiff applied his brakes but was unable to stop in time. He then attempted to pass by on the shoulder to the right, but at that moment defendant Robinson pulled her automobile over to the shoulder. As a result, plaintiff’s motorcycle [169]*169struck defendant Robinson’s automobile and became airborne, striking part of a fence and throwing plaintiff to the ground. For injuries sustained, plaintiff sued Austin and Robinson.

They filed answers as did Standard Guaranty Insurance Company and Motors Insurance Company, two carriers of uninsured motorists coverage. After pre-trial conference at which the two insurers participated, the case came to trial. Plaintiff’s counsel requested permission to voir dire the prospective jurors regarding their relationship or acquaintance with the two insurance companies’ counsel. They objected, stating that they did not intend to participate fully in the trial. After an extended discussion during a bench hearing, these counsel withdrew and agreed to waive both the right to participate in any manner in the trial and any objections to the conduct of it. The trial court denied to them any option to change their minds in this regard and informed counsel: “Once you are out of it, you are out of it.” Plaintiff’s voir dire was therefore limited to obtaining information about knowledge or acquaintance by prospective jurors concerning the insurance companies but not their counsel.

1. OCGA § 33-7-11 (d) requires service upon an insurance company furnishing uninsured motorist protection and affords it the status of a party if it so chooses. Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 168 (268 SE2d 676) (1980); Doe v. Moss, 120 Ga. App. 762 (172 SE2d 321) (1969). The insurance companies did opt to participate by filing pleadings and engaging in the pretrial conference. Plaintiff therefore contends that as a consequence, OCGA § 15-12-133 grants him the right to inquire regarding “the relationship or acquaintance of the juror[s] with the parties or counsel therefor.”

That statute is broad, but the trial court still retains the discretion to limit the examination to questions dealing directly with the specific case. Chastain v. State, 255 Ga. 723, 724 (1) (342 SE2d 678) (1986). Waters v. State, 248 Ga. 355, 363 (3) (283 SE2d 238) (1981). After the court carefully insured that counsel for the insurance companies had withdrawn fully from further participation in the trial, a question as to a juror’s relationship or acquaintance with counsel was no longer relevant or material to any issue. Plaintiff was allowed to inquire whether any prospective juror had gained any knowledge of the case from any outside source or had any relationship or acquaintance with the insurance companies. No abuse of the trial court’s discretion is shown.

2. During cross-examination of defendant Robinson, counsel for plaintiff attempted over objection to show that her trial testimony contradicted her prior deposition testimony. When ruling on admissibility, the trial court stated: “I don’t see anything contrary in the deposition that you have read — contrary to what she testified to at the scene.” Plaintiff contends this was a prohibited comment on the [170]*170evidence proscribed by OCGA § 9-10-7.

While generally the judge should not express within the jury’s hearing his or her opinion as to what has or has not been proved, “such an expression or intimation, when not flagrant, is not a [code] violation” when made during discussion with counsel concerning the admissibility of testimony or in explaining the ruling. York v. State, 42 Ga. App. 453, 457 (21) (156 SE 733) (1930). Miller v. State, 122 Ga. App. 553, 554 (3) (177 SE2d 838) (1970). The court has the right to explain its decision on objections to evidence and, if pertinent, such reasons do not constitute prohibited expressions of opinion. Reed v. State, 163 Ga. 206, 213 (2) (135 SE 748) (1926). No violation occurred here.

3. Plaintiff contends that the trial court erred in directing a verdict in favor of defendant Austin for lack of any evidence as to his negligence. Austin had been flagged down by a pedestrian and was stopped in the left lane of travel. Robinson stopped in the right lane to speak to Austin. The conjunction of the two cars effectively blocked plaintiff’s progress on the road. A jury could have found that plaintiff’s correct maneuver when faced with the emergency was to have passed on the left, but that Austin sealed off that route and thereby negligently contributed to the wreck.

The jury, apparently applying comparative negligence, found for plaintiff in the sum of $6,500 which we must assume to be the total amount of his damages. Even if the ruling in favor of Austin is error, plaintiff cannot complain that one defendant was released because he failed to show his entitlement to a greater recovery in any case, whether against one or two defendants. Absent a showing that the jury was influenced to reduce plaintiff’s recovery, Bennett v. Kuhlke & Assoc., 156 Ga. App. 110, 113 (274 SE2d 14) (1980), or that he was otherwise jeopardized (there admittedly being insurance to cover the judgment), the error was harmless.

4. During argument to the jury, defendant’s counsel proposed to the jury a method by which they could compare the negligence of plaintiff with that of defendant. Defendant started with the assumption that 100 percent of the total negligence accounted for all of plaintiff’s injuries, and with the principle that where plaintiff’s negligence equals or exceeds that of defendant then plaintiff may not recover. He reasoned that, assuming defendant was 60 percent negligent and plaintiff 40 percent, plaintiff’s negligence should be subtracted from defendant’s, yielding for plaintiff a 20 percent recovery of his total damages.

Plaintiff objected to this method of calculation but the court permitted it and informed plaintiff he could advance the measure he thought proper. In his brief to this court, plaintiff relies upon Georgia R. & Power Co. v. Belote, 20 Ga. App. 454 (2) (93 SE 62) (1917): [171]

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Starks v. Robinson
375 S.E.2d 86 (Court of Appeals of Georgia, 1988)

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Bluebook (online)
375 S.E.2d 86, 189 Ga. App. 168, 1988 Ga. App. LEXIS 1323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/starks-v-robinson-gactapp-1988.