Findlay v. GriffinFindlay v. Griffin
Margaret Griffin and Burch Griffin filed the underlying action to collect damages for injuries Mrs. Griffin suffered in an automobile collision with Susan Findlay. Mr. Griffin asserted a loss of consortium claim. The jury awarded the Griffins $200,000. Findlay appeals contending the trial court erred in аllowing improper questions, allowing improper remarks during closing argument, and in failing to give certain requested jury chargеs.
1. Findlay contends the trial court erred in failing to charge on Mrs. Griffin’s duty to maintain a proper lookout, after the cоurt had indicated such charge would be given.
In the present case, the Griffins alleged that the accident occurred when Findlay failed to yield the right-of-way as she was making a left-hand turn across the lanes in which Mrs. Griffin traveled. Findlay asserted the defenses of cоmparative negligence, avoidance, and Mrs. Griffin’s failure to keep a proper lookout. Mrs. Griffin testified that she saw Findlay’s car in her lanes of travel, but she thought Findlay was moving. By the time Mrs. Griffin realized that Findlay was stopped, it was too late to avoid the collision. Findlay’s testimony supported her defense that Mrs. Griffin would have known she was stopped if Mrs. Griffin had been looking. The trial court agreed to charge on Mrs. Griffin’s duty to maintain a proper lookout, but inadvertently failed to givе the charge. After the failure to give the charge was brought to the trial court’s attention, the court decided that thе failure to give it was not significant enough to recharge the jury. The Griffins contend the charge was encompassed in thе trial court’s charge on negligence. We cannot agree.
The trial court had agreed to charge as fоllows: “A driver has no right to assume that the road ahead is clear and has a duty to maintain a lookout for potentiаl hazards.” This is a correct statement of the law applicable to this case. See
Brown v. Shiver,
In the present case, Findlay’s attorney, under the imprеssion that the trial court would give the requested charge, discussed it during closing arguments. The trial court’s failure to give the requested charge and later failure to correct its omission must be considered harmful when it could have confused the jury and undermined the credibility of Findlay’s closing argument. Furthermore, upon proper instructions, the jury could have determined that Mrs. Griffin did nоt maintain a proper lookout. Therefore, the judgment must be reversed as Findlay is entitled to a new trial with propеr jury instructions.
. As Findlay’s additional enumerations of error raise issues which may occur upon a retrial of this case, we address them below.
2. Findlay contends the trial court erred in failing to charge the jury regarding Mrs. Griffin’s duty to mitigate damages. As some evidence was introduced which indicated that Mrs. Griffin may have stopped treatment for some physical problems, Findlay wаs entitled, upon proper request, to a charge on mitigation of damages. See Southern Bell, supra at 518.
3. Findlay asserts the trial court erred in allowing the Griffins’ attorney to question her as to whether the physical damage to the cars was consistent with their vеrsion of the accident. Findlay contends that such a question requires an accident reconstruction expert and was beyond her expertise. The question called for Findlay’s opinion, and we cannot say that the trial court abused its discretion by allowing it.
4. Findlay contends the trial court erred by allowing the Griffins’ counsel to remark during closing argument that if evidence existed to contradict his client’s testimony, Findlay could have produced it. Findlay argues that this improperly shifted the burden of proof. The Griffins’ counsel also argued that the Griffins had the burden to prove their damages and that he did not want Findlay to prove the Griffins’ damages.
“Where a witness is known, competent, and compellable to testify as to material facts of which he is cognizant, counsel may properly comment in his argument before the jury on the failure of a pаrty to whom the witness is accessible to produce the witness’ testimony.
Floyd v. Colonial Stores,
“Counsel should have ample latitude to argue what has transpired in а case from its inception to its conclusion, and the conduct of the party or his counsel with respect to thе case is the subject of legitimate comment, and the range of such comment is necessarily in the discretion of thе trial judge; and unless it can be shown that such discretion has been abused and some positive injury done by the remarks of cоunsel, the discretion of the trial judge will not be controlled.” (Citations and punctuation omitted.)
Dictograph Products v. Cooper,
As the Griffins’ counsel indicated, Findlay’s counsel did attempt to elicit sympathy during his closing argument by stating that, “Mrs. Findlay is being sued by Ms. Griffin and also being sued — I mean, under the uninsured motorist coverage from State Farm, Mrs. Find-lay is being sued by them, too. So she’s kind of getting it from both sides.” The Griffins’ counsel’s comments were merely responding to Findlay’s counsel’s arguments. We cannot say that the trial court abused its discretion in allowing the comments objected to by Find-lay.
Judgment reversed.