158 Ga. App. 843 | Ga. Ct. App. | 1981
Lead Opinion
This is a shareholder derivative action against the First National Bank of Tucker and its former officers and directors. The First National Bank of Atlanta, as pledgee of shares in the First National Bank of Tucker, intervened as party plaintiff. After a trial of some six weeks, resulting in 12 volumes of transcript, the jury found in favor of the defendants. The sole error enumerated on appeal is directed towards the trial court’s refusal to send out with the jury certain items of documentary evidence which had been introduced and received during the trial.
The plaintiffs allege that the defendants were negligent in making and administering a large number of loans which resulted in losses to the bank and thus in a diminution of the value of its capital stock. The documentary evidence at issue consists of many thousands of documents pertaining to individual loans. At the time the documents were offered, plaintiffs notified the court that they intended to rely upon the testimony of expert witnesses who had examined them and urged the court to admit the documents on the ground that they constituted the foundation for the experts’ testimony. After being assured that the documents had been available to the parties for quite some time, the court deferred ruling on their admission pending the testimony of the plaintiffs’ experts summarizing them. During the course of the trial, as these witnesses testified, the documents were admitted as establishing the foundation for their testimony. Held:
Plaintiffs rely quite heavily upon the general proposition that “ [a]ll properly introduced documentary and demonstrative evidence will be taken into the jury room when the jury retires.” Agnor, Georgia Evidence § 15-12, p. 325 (1976). Accord Green, Georgia Law of Evidence, § 87.1, p. 206 (1957). See also, e.g., Dobbs v. State, 214 Ga. 206 (3) (104 SE2d 121) (1958); Edwards v. State, 213 Ga. 552 (100 SE2d 172) (1957); Hunter v. State, 143 Ga. App. 541 (239 SE2d 212) (1977); Kincaid v. State, 137 Ga. App. 138 (1) (223 SE2d 152)
We note that although offered the opportunity to single out particular documents for the jury’s attention, plaintiffs failed to do so. They insisted instead that the entire mass of exhibits be sent to the jury room, even though conceding that among the mass there probably were some documents which were not, strictly speaking, admissible. Under these circumstances, it does not appear that the documents would have assisted the jury in resolving any issue in the case. Rather, the only possible effect of sending them to the jury room would have been to impress the jurors with the volume of evidence introduced by the plaintiffs.
“The question whether a particular exhibit may be taken by the jury is widely viewed as subject to discretionary control by the trial judge . . McCormick, Evidence, § 217, p. 539 (1972). We find no abuse of discretion under the circumstances presented.
Judgment affirmed.
Concurrence Opinion
concurring specially.
I reluctantly concur in the ruling of the majority affirming the judgment although I do not agree with all that is stated in the majority opinion. I believe that the rule in this state is and should remain that all documentary evidence admitted by the trial judge should go out with the jury and be present during the deliberation. However, after reviewing this most voluminous record, I am constrained to agree that on the facts of this particular case as evidenced by the trial management scenario commencing with the pretrial conference, there was no abuse of discretion which requires reversal. Nevertheless, I am convinced that the better practice would be for the jury to have access to all properly introduced evidence in all cases. If the “Summary of Voluminous Records Rule” is truly applicable and is invoked, any documents sought to be included within the purview of that rule should not be actually admitted into evidence.
For the above reasons, I concur in the judgment only.
