GLOVER
v.
SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al.
Court of Appeals of Georgia.
White, Webb & Jewett, C. Lawrence Jewett, for appellant.
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Mathew H. Patton, Robert W. Coleman, for appellees.
CLARK, Judge.
Having been presented previously in our Supreme *75 Court for consideration of a collateral issue (Glover v. Southern Bell Tel. &c. Co.,
Plaintiff was injured when a vehicle, driven by plaintiff, was struck from the rear by a utility truck of the Southern Bell Telephone and Telegraph Company. At the trial of his suit in which he sought damages in the amount of $65,500, a verdict of $1,000 was returned for plaintiff. Being dissatisfied with the result plaintiff filed a motion for new trial on general grounds to which special grounds were added by amendment. This appeal from the overruling of that new trial motion as amended enumerates as error the various points presented to the trial court by that motion.
1. Is a chiropractor's bill admissible as coming within those items of evidence provided for in Code Ann. § 38-706.1 (Ga. L. 1970, p. 225)? For the first time this question has been presented upon appeal. The 1970 statute was enacted as a pragmatic process to eliminate the necessity of having an expert witness testify that medical expenses incurred for treatment of injuries resulting from the subject of litigation were reasonable and necessary. See Taylor v. Associated Cab Co.,
*76 2. Plaintiff contends the trial court erred in excluding plaintiff's testimony as to various additional medical bills. Plaintiff attempted to testify from a memorandum which he had prepared summarizing such expenditures. After the court's ruling on the memorandum the individual bills were introduced into evidence. Thereby, any error in exclusion of plaintiff's "memorandum" testimony was made harmless. Murray v. Hawkins,
3. This same principle of harmless error contained in the cases cited in the foregoing division applies to the next evidentiary error complained of by appellant. When plaintiff concluded his case he sought again to submit medical bills including that of the chiropractor "for the purpose of showing pain and suffering and not for the purpose of collecting." (T. 293). Plaintiff had already testified as to the nature and extent of his chiropractic treatment. (T. 59-61). Likewise, the medical bills summarized in his memorandum were admitted upon proof of relationship with the claim. Accordingly, we find no basis for a reversal as to these contentions.
4. Plaintiff asserts the trial court erred in excluding from the evidence portions of Dr. Lawrence Lee Freeman's depositional testimony. A reading of the trial transcript beginning at page 117 indicates that the deposition was not introduced as such but was read before the jury. At those portions which appellant contends were erroneously excluded the transcript shows that objections were made by defense counsel. Instead of reading those portions into the trial record and obtaining a ruling by the judge thereon, the portions were omitted. Thus we are unable to pass upon the assertion. Our "decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs *77 of counsel." Jenkins v. Board of Zoning &c.,
5. Plaintiff contends the trial court erred in permitting a defense witness to testify when his name had not been listed in defendant's response to plaintiff's interrogatories. Plaintiff's interrogatory No. 10 was in the usual catch-all phraseology asking for the "names, addresses, home telephone numbers, places of employment, job titles or capacities, and present whereabouts of all persons, including all passengers in the defendant's car, having knowledge of relevant information, facts, or circumstances in this case, known to the defendant." A similar linguistic dragnet interrogatory was considered in Nathan v. Duncan,
As no motion for postponement was made, our ruling must be in conformance with that stated in the seventh headnote of Nathan v. Duncan, supra: "[A]llowance of the witnesses to testify over objection that the names were not supplied is a matter in the sound discretion of the trial judge and is not ground for new trial."
6. Plaintiff avers error in the trial court's denial of *78 his motion for a directed verdict upon the issue of negligence. Although defendant did not present any witnesses to testify concerning the details of the rear-end collision, plaintiff's evidence created questions as to diligence and proximate cause. Accordingly, the trial court was correct in denying the motion. Buckhead Glass Co. v. Taylor,
In dealing with this enumeration of error we observe that the appellant's brief states that "Movant is not unmindful of the long list of cases cited in 20 Ga. Digest, Trial Key No. 171, to the effect that it is never error to refuse to direct a verdict." For the benefit of bench and bar we deem it proper to note that these cases are no longer binding as a result of changes made by the Appellate Practice Act of 1965 and the Civil Practice Act of 1966. Code Ann. §§ 6-702 (b) and 81A-150 (e) now empower the appellate courts to pass upon the correctness of a denial of a motion for directed verdict. This also applies to criminal cases. Merino v. State,
7. Assuming, but not deciding, that the trial judge erred in charging the jury on the degree of care which the plaintiff was bound to exercise, such error was harmless since the verdict was for plaintiff. "[I]t has long been the rule that when a verdict has been returned in favor of the plaintiff, errors in the giving of the charge, in omissions from the charge or in the refusal of requests which go to the matter of liability only are harmless to the plaintiff and afford no ground for reversal at his instance. [Cits.]" Maloy v. Dixon,
8. As to the general grounds, it is sufficient to quote the following from Beecher v. Farley,
Judgment affirmed. Bell, C. J., and Quillian, J., concur.