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PAYNE v. THOMPSON

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Court of Appeals of Georgia.

PAYNE v. THOMPSON et al.

No. A98A1574.

Decided: September 25, 1998

Lynwood D. Jordan, Jr., Cumming, for appellant. Hall, Booth, Smith & Slover, Roger S. Sumrall, Atlanta, for appellees.

Both Officer Thompson's police car and the vehicle driven by the man he was pursuing struck the car Ruth Emily Payne was driving.   Alleging negligence, Payne sued these two men plus the officer's employer for damages.

This case first appeared before this Court as an interlocutory appeal, in which we affirmed the denial of summary judgment to defendants.1  Following trial, the jury returned a defendants' verdict.   Payne's motion for new trial was denied.   Her sole enumeration of error on appeal is that the court erroneously charged the jury on certain principles of negligence and liability.

 In her notice of appeal Payne specifically excluded the transcript of the evidence and included only the transcript of the court's charge to the jury.

The void created by the omission is problematic.   As stated in Layne v. Rosenfeld,2 “even though there may be error in the charge, we cannot determine whether this error is harmful in the absence of a transcript of the evidence.   If the evidence should have demanded the verdict found by the jury, the instructions, even if error, would have been harmless and not cause for new trial, and since the burden and duty of affirmatively showing injury as well as error rests upon the appellant, and such injury does not affirmatively appear in the absence of the transcript of the evidence, we must ․ affirm the judgment of the trial judge in overruling the motion for new trial.”

Similarly, Johnson v. Bruno's, Inc.3 explained that “it is well recognized that charging errors can, under certain circumstances, be rendered harmless and not result in reversible error.   Without access to a trial transcript, we would be unable to determine accurately whether any resulting charging error was harmless, and for this separate and independent reason, we also would be compelled to affirm the judgment․”   In addition to Layne and Johnson, on at least four other occasions this Court has refused to consider charging errors where no complete transcript or an equivalent was included in the record.4

 True, Foskey v. Foskey 5 held that erroneous charges are “presumed to be prejudicial and harmful ․”, but this is not conclusive because “the presumption of harm which arises from a charging error [may be] overcome by a review of the record as a whole.” 6  Jury charges must be adjusted to the evidence.7  The appellate court presumes that the trial court discharges its duty in compliance with the law based on the evidence before it, so in the absence of a transcript we affirm where the enumeration of error requires a review of the transcript.8  The alleged charging errors in this case require such a review, for they would not result in reversal if the transcript revealed they did not affect the verdict.9

Moreover, on its face the first charge appears correct as it is nothing more than an instruction that if no negligence is found, there is no liability.   The second charge is not targeted in a separate enumeration as required by OCGA § 5-6-40.

Judgment affirmed.

FOOTNOTES

1.   See Thompson v. Payne, 216 Ga.App. 217, 453 S.E.2d 803 (1995).

2.   (Citations omitted.)  122 Ga.App. 839, 839-840, 178 S.E.2d 920 (1970).

3.   (Citations omitted.)  219 Ga.App. 164, 166(4), 464 S.E.2d 259 (1995).

4.   See Whitby v. Maloy, 150 Ga.App. 575, 576(2), 258 S.E.2d 181 (1979);  Derryberry v. Higdon, 116 Ga.App. 381, 383(2), 157 S.E.2d 559 (1967);  Bishop v. Peoples Loan & c. Corp., 101 Ga.App. 53, 58(8), 113 S.E.2d 161 (1960);  Gulick v. Mulcahy, 95 Ga.App. 158, 97 S.E.2d 362 (1957).

5.   (Citation and punctuation omitted.)  257 Ga. 736, 737(2), 363 S.E.2d 547 (1988).

6.   (Citation omitted.)  Roberts v. State, 267 Ga. 669, 676(10)(d), 482 S.E.2d 245 (1997).

7.   Carter v. State, 224 Ga.App. 445, 448(1), 481 S.E.2d 238 (1997);  Toole v. Brownlow & Sons Co., 151 Ga.App. 292, 296(3), 259 S.E.2d 691 (1979).

8.   Gillespie v. Gillespie, 259 Ga. 838, 388 S.E.2d 688 (1990);  see, e.g., Dalton v. Vo, 230 Ga.App. 413, 414(3), 497 S.E.2d 245 (1998);  Gaddis v. Skelton, 226 Ga.App. 325, 326-327, 486 S.E.2d 630 (1997).

9.   See, e.g., Gavin v. Vasquez, 261 Ga. 568, 570, 407 S.E.2d 756 (1991);  Ross v. State, 192 Ga.App. 850, 851(4), 386 S.E.2d 721 (1989);  Barton v. State, 188 Ga.App. 237, 238, 372 S.E.2d 647 (1988).

BEASLEY, Judge.

POPE, P.J., and RUFFIN, J., concur.

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