*1 819 Stolz, Jr., Green, John C. Irwin W. Pennington, Robert L. Kevin Mittenthal, Smith, Poe, Barry P. James N. for Talmadge, Malcolm appellees. (CHEVRON) OIL COMPANY. STANDARD
61053. BYNUM v. Presiding Judge. Shulman, (Chevron) brought against suit defendant-Standard he was when the automobile Company damages Oil sustained a verdict and a truck owned defendant. From driving collided with defendant, We affirm. plaintiff appeals. judgment favor of are addressed to plaintiffs 1. Several of enumerations of error and allegedly wrongful prejudicial the court’s admission of irrelevant reversal. evidence. None of the enumerations merits in allowing A. Plaintiff asserts the trial court erred that testimony May approximately he had been divorced six weeks before the collision. Defendant that such maintained pertinent evidence was and relevant to the emotional attitude of the (his mind) plaintiff state of at the time of the collision. Plaintiff objected testimony, arguing the fact of his divorce was irrelevant and prejudicial.
It has been held that an on the objection grounds prejudice irrelevancy and proper objection does not constitute a and that it present does not therefore this court with an issue for review. See State, v. (4) (213 91). McGahee App. 133 Ga. 964 SE2d Even assuming proper objection raised a and that complained-of irrelevant, testimony since has failed to demonstrate that such prejudiced presentation of his case, any See, Duel S. error its admission e.g., was harmless. Enterprises Webb, v. (3) (227 418). 138 App. Ga. 810 SE2d
B. Nor do we find error questioning defense counsel’s (the plaintiff as to the maximum speed of a Corvette make of collision). by plaintiff automobile driven at the time of the First plaintiffs objection on the grounds such information was Jones v. pose proper objection. irrelevant immaterial does not Brawner, (1) (260 385). App. Second, 151 if Ga. SE2d even properly objected particular question, had to this since evidence was subsequently question, admitted on the same to which objection made, any prior no in allowing error Wallace, was harmless. See Sou. Bell Tel. & Tel. Co. v. (210 App. 347); (187 Bristol, SE2d Ruffin App. 125 Ga. v. 577); Fussell, 830). SE2d Rouse v. 106 Ga. C. Plaintiff complains testimony admission of paper brown sack on the plaintiffs floor of automobile looked like it cans, contained some that the was irrelevant prejudicial. Again, even assuming proper objection was made *2 (but 1A), see Division since testimony similar as to the contents of the paper sack was objection, admitted without error the admission of the complained-of See, was harmless. e.g., Wallace, Sou. Bell Tel. & Tel. Bristol, Co. v. supra; supra; Ruffin v. Fussell, Rouse v. supra.
D. Plaintiffs failure proper to raise a objection likewise precludes this court’s consideration of his complaint regard to a question concerning the amount of alcohol by plaintiffs consumed companion on day the of the Brawner, collision. See Jones v. supra.
2. argues on the issue of the admission of the results of test; first, blood-alcohol requirements that the of Ann. Code § 68A-902.1 were not satisfied test; and, for the admission of the second, proper that a chain custody of was not shown to establish the authenticity of the blood test results. contends, hand,
Defendant on the other that the blood-alcohol test results were admissible under Code Ann. part 38-711 as of a § hospital record. We agree with defendant’s contentions in this regard. We do not find compliance with Code Ann. 68A-902.1 § (a) (3) (2), prerequisite to the admission of the blood test results. 2, 3,
Subsections (a) of Code Ann. 68A-902.1 specifically § they applicable state that are to person those situations where a shall undergo a chemical test at the request or direction of a law Here, enforcement officer. no such request or direction was made. There was evidence at trial that the doctor who treated hospital the emergency room following the collision detected what thought was the odor of alcohol about plaintiff, the and that he ordered a blood-alcohol test to be performed upon the order to type determine the of anesthesia plaintiff. to use on the The evidence thus showed that performed test was pursuant medical treatment of the plaintiff and recorded the regular course hospital Moreover, business. the blood-alcohol test was not administered for the purpose of determining whether violated Code Ann. 68A-902. Accordingly, necessary it was not § defendant establish compliance with Code Ann. 68A-902 to render § the test results admissible. The blood test results thus recorded regular course of hospital business were admissible Ann. under Code 38-711. § were
Plaintiff also submits the results inadmissible sample custody blood was not chain of of the reliability of the results. Even sufficiently proved to establish the Ann. custody, were in the Code 38-711 assuming gaps there chain of § properly when as a provides otherwise admitted making of the of such business record other circumstances “[a]U record, writing personal or lack of including knowledge entrant maker, may they be shown to affect its but not weight, or shall affect ” admissibility. supplied.) (Emphasis its so, being gaps custody
That in the sample chain of of the blood part hospital admitted would not affect record merely admissibility go weight the test results but We find no in the jury. accorded thus error admission test results. 3. following hypothetical question Plaintiff asserts error “Now, posed by an expert defense counsel to witness: let’s assume that an individual drank whiskey beer awhile then drank or — ethyl some form of Are kind alcohol. able establish any precision with of time it an length average get takes *3 one nine plaintiff the blood alcohol level of recorded the [.19 hospital] you’re mixing things up?” when these
Although plaintiff there was no direct evidence that the had drink, anything other than beer to the evidence showed that he a had level blood-alcohol of .19. Since the testified that he had had only drink, a few beers his testimony regarding the level of his impeached alcohol inherently suspect. and There (in beer) was evidence that alcohol a form other than was available to the and evidence that his of alcohol resulted in a blood-alcohol level of A hypothetical question .19. thus directed to the amount of beer or produce other alcohol would a reading .19 does not evidence, raise facts that were not in but raises facts that were at indirectly least in implied by plaintiff’s evidence or the blood test results and his conflicting testimony.
Moreover, in view of plaintiffs failure to any demonstrate harm flowing question, any from such error in allowing question would be considered harmless error. 4. Plaintiff complains of the “I following charge: charge you, — — jury
members of the Georgia except and this the law of when a special requires hazard exists speed, which lower is not applicable here, limits, except out in previous as set code sections just charged you, that have the limits specified hereinafter or established as hereinafter authorized shall be the maximum lawful speeds vehicle and no shall in speed drive a vehicle at a excess the following per any maximum limits: 30 miles hour urban or Now, district; per residence 55 miles hour location. . you by preponderance if find of the evidence that charge statute, guilty this has violated this then would be per se.” negligence charge the reference in the plaintiffs
It is contention that mph. speed jury limit residential and urban areas left the with misimpression particular it was of fact as speed applicable, indisputably limit whereas the evidence showed mph. limit zone. speed the collision occurred a 55 defendant, plaintiffs
We as with contention that agree, does Indeed, mph. speed applicable. the 55 limit was light collision, jury evidence as to the location of of the could not have superfluous speed been misled the court’s limit in charge as to the urban and residential areas. speed Since the evidence on the relevant (55 mph.) limit apparently dispute, charge given was not did not constitute reversible error. harmful,
“An inappropriate charge, unless is not Appellant new trial. has not demonstrated how this has charge [Cits.] harmed him jury nor are we constrained to believe that the could have away by been led charge this one from the issues the case.” (2) 873). Woody, Johnston v. This present grounds enumeration of error does not for reversal. . While we recognize severity plaintiffs injuries and the hardship of an adverse verdict judgment, and we find no error mandating grant of a new trial. Quillian, J., Deen, J.,
Judgment Birdsong affirmed. C. P. JJ., J., Banke, Sognier, McMurray, Carley JJ., concur. P. Pope, dissent. 16, February Decided
Rehearing denied March *4 Thornton, Richard B. appellant. for Felton, Jr., Dodson, Jule W. Jr., Carr G. Kirk McAlpin, M. appellee.
Carley, Judge, dissenting. While concur in Divisions and 4 of the majority opinion, cannot agree analysis with the holding in Division 3 of the opinion with regard propriety to the of hypothetical question propounded to expert. expert asked, “Now, defendant’s The let’s assume that an individual drank beer for awhile and then drank whiskey or some form ethyl you of—other kind of alcohol. Are able to - average an any precision of time it takes length establish with up?” mixing things these you’re to to one nine when get timely objected at trial (Emphasis supplied.) any that there was no evidence hypothetical question on the basis of the record consumption by plaintiff. My review liquor that, indeed, party from either that the there was no evidence verifies day any beverage other than beer on the plaintiff consumed alcoholic Therefore, face, hypothetical question on its of the collision. majority attempts in that it states facts not evidence. The deficient necessity requirement to circumvent the well established of the that a by hypothetical question supported adjusted be to the facts by place pointing where mixed drinks were emphasizing available and the evidence “that his of alcohol resulted a blood-alcohol level of upon possible “availability” .19.” Based to of alcohol test—which, form other than beer combined with the blood-alcohol best, only support at can finding the level ascertained was produced by consumption type majority of some alcohol—the excuses the factual hypothetical question by deficiencies fantasizing question that the was “directed to the amount of beer or other alcohol that will produce a . . .” reading (Emphasis of .19 supplied.) What the majority implies is that hypothetical because the question included one or evidence, more facts which were direct- ly or indirectly, the propounder hypothetical of the question automatically had assumptions license to add supported by not However, record. important it is question to note that the which this court approves now as to form and majority substance was not as the rationalizes, phrased in terms of assumption upon an based of beer or other alcoholic beverage. question The specifically and unequivocally sought expert’s to elicit the opinion upon based an assumption that beer was mixed with whiskey or other form of “hard” alcohol. question
The was designed present to an indication that plaintiff had consumed alcohol in a form other than That beer. such was the thrust is evidenced expert answer of the given after the overruling objection: “It depend would degree of mixing. Mixed drinks do have a higher alcoholic content beer, that, than course, so of, it takes fewer say, eighty-six ounces proof whiskey get beer, to the same as it does so need—I leve[l] would need more you any information as to the combination give type general—specific whiskey answers to how much versus beer. It in any could be proportion.” (Emphasis supplied.)
Considering the content as well as the apparent intent of the hypothetical question, the absence of supporting *5 824 beer, by plaintiff anything and the than question, I
response expert hypothetical believe that the in failing objection. trial court erred to sustain the See Ga. Power Co. (188 140) (1972). Crutchfield, App. v. 125 Ga. SE2d Because the in alcoholic was a crucial factor plaintiffs dispute accuracy case and view of the defendant’s test, I of the blood-alcohol am convinced that the erroneous improper hypothetical allowance of the was harmful Therefore, required. respectfully that reversal is dissent. Judge McMurray, Judge am authorized to state that Presiding Pope Banke and this dissent. Judge join 60928. COTTON v. RUCK. Judge.
Sognier, Ruck against appellant filed suit Cotton the State Court of County, Fulton alleging that Cotton had defaulted on a note. The note was County; executed Fulton although Cotton was not a resident of County, Fulton personally was served in Fulton County. Cotton failed to file an answer and judgment a default was against entered him. Cotton’s motion to set aside judgment denied. Cotton appeals and we affirm.
Appellant’s motion to pursuant set aside to Code Ann. 81A-160 § (d) brought on the that a non-amendable appears defect on the face of the pleading because complaint failed to proper- allege ly appellant’s residence County. Appellant’s Fulton contention of personal failure of jurisdiction is based on lack of However, venue. appellant did not raise this responsive defense his pleadings dismiss, or motion to required by Code Ann. § (h). who, 81A-112 served, “One being properly rely wishes to venue, defense of lack of must bring it to the attention of the court at a proper time or the defense is waived. ‘Allowing a case to go to default judgment is no better than allowing a case to be tried on the merits before coming with a technical Bynum, defense’ Aiken v. 128 Ga. (2) (196 App. 180).” Alston, SE2d Allen v. App. Ga. (234 152) (1977). SE2d
Appellant’s reliance Morgan Berry, on v. 508) (1979), misplaced. In that case the appellant’s denial of motion to set However, aside was reversed. appellant in Morgan had properly raised the defense of lack of venue a motion to the case here prior dismiss to default. Such is not and the motion to