429 S.E.2d 692 | Ga. Ct. App. | 1993
This is the second appearance of this case in this court. In Boulden v. Fowler, 202 Ga. App. 237 (414 SE2d 263) (1991), we reversed the trial court’s dismissal of the appeal on the ground that there had been an unreasonable and inexcusable delay in filing the trial transcript. The case is now before us for consideration of the appeal on its merits. Specifically, Kathryn and David Boulden raise three enumerations of error regarding jury instructions given in the trial at which they were awarded a verdict in the amount of $10,000 for injuries Kathryn Boulden sustained in a motor vehicle accident.
1. Boulden first asserts that the trial court erred when it charged the jury on the law of collateral source. Because no specific references to the record are given (in contravention of Court of Appeals Rule 15), it is difficult to ascertain which portion of the charge appellant finds objectionable. The record reveals that the trial court refused to give defendant’s requested charge on the collateral source rule. OCGA § 51-12-1. A charge was given regarding the mandatory provisions of the no-fault law, and the jury instructed that any award for loss of earnings should be reduced by the $2,500 Boulden had already received. OCGA § 33-34-9. No exception was taken to that charge, however. “It is axiomatic that a party cannot complain of the giving of an instruction to the jury unless he objects thereto after the court has instructed the jury and before the jury returns a verdict.” Rodriguez v. Davis, 202 Ga. App. 550, 551 (1) (415 SE2d 41) (1992). No proper objection to the jury charge having been made, there is nothing before us to review.'
2. Boulden next complains that the trial court erred when it charged the jury on the law of driving under the influence. David Boulden, who was driving the car in which Kathryn was riding when she was injured, admitted to having consumed two beers three to four
3. Finally, Boulden asserts that the trial court erred in charging the jury on the law of assumption of the risk. In light of our holding in Division 2, there is no evidence that there was risk to assume, and giving this charge would be error as well. However, assumption of the risk is an absolute defense and the jury could not have found that Kathryn Boulden “assumed the risk” and still awarded her damages. See Benson v. Tucker, 160 Ga. App. 217, 218 (3) (286 SE2d 485) (1981). Therefore, even if the trial court erred in giving this charge, it was harmless.
Judgment reversed.