Henderson v. Lewis , 128 Ga. App. 28 ( 1973 )

128 Ga. App. 28 (1973) 195 S.E.2d 289

HENDERSON et al
v.
LEWIS et al.

47686.

Court of Appeals of Georgia.

Submitted January 2, 1973. Decided January 31, 1973.

Merritt & Pruitt, Glyndon C. Pruitt, for appellants.

Boling & Neville, Robinson, Buice, Harben & Strickland, B. Carl Buice, for appellees.

QUILLIAN, Judge.

The collision out of which these two actions arose occurred when a vehicle owned by Equilla Lewis and operated by Cecil Holland Wheeler skidded on wet pavement and collided with a vehicle operated by the plaintiff, Nancy Henderson. Mrs. Henderson filed suit for her pain and suffering. Mr. Henderson's suit is a derivative action for medical expenses and loss of consortium. The jury found in favor of the plaintiffs and awarded Mr. Henderson a verdict of $250 upon evidence which showed medical expenses of $235. Mrs. Henderson was awarded $500 for her pain and suffering. The plaintiffs appeal from the judgments entered upon these verdicts in their favor. Held:

1. The plaintiffs contend that they should have been granted a new trial because one of the jurors failed to give a truthful answer to a question he was asked on voir dire. There was no transcript of voir dire examination filed nor was the record corrected as provided by Code Ann. § 6-805 (Ga. L. 1965, pp. 18, 24). An affidavit of appellants' counsel would not meet the requirements of statute cited above. There being no transcript of the voir dire examination, this court cannot consider this enumeration of error. McKinney v. State, 121 Ga. App. 815 (1) (175 SE2d 893).

2. It is argued that the trial judge erred in excluding testimony regarding the fact that the defendant driver had plead guilty in traffic court. The jury having found for the plaintiffs on the question of liability the ruling, if error, would not require a new trial. Joyce v. City of Dalton, 73 Ga. App. 209, 216 (36 SE2d 104).

3. The plaintiffs contend that it was error to instruct the jury in regard to accident. The defendant driver testified that his vehicle was in proper working order and that when he put on brakes the truck skidded because the highway was wet. The charge was applicable and therefore not error.

4. The verdict was supported by the evidence and was not inadequate as a matter of law.

Judgment affirmed. Bell, C. J., and Deen, J., concur.