The facts here are immaterial. Briefly, the parties entered into an oral contract for interior decorating services. Appellant subsequently terminated these services and dispute arose over the balance owed appellee. The jury found for the appellee. At the close of the evidence, and prior to final argument, appellant’s counsel presented a written request to charge, and asked to be informed of the trial court’s proposed action with respect to the request. It is alleged that the court refused. The actual presentation of the request and the court’s reply were not reported by the court reporter. After the jury had retired, appellant’s counsel discovered the omission and in an endeavor to confirm the court’s alleged refusal, attempted to get the court to reiterate the alleged earlier refusal. A motion for new trial based on the failure of the trial court to inform counsel of its proposed action concerning the jury charges prior to argument as required by Code § 70-207 (b) was denied.
It is not necessary to determine from the trial judge’s responses to counsel’s bifurcated questions after the jury retired whether he intended to convey simply that he did not give the charge, or whether he admitted that he failed to advise counsel as to whether he would give the charge pursuant to the request so made. Assuming that the judge did not inform counsel of his intentions and that request to do so was made, no reversal would be required because of appellant’s failure to show harm or substantial prejudice resulted. Code § 70-207 (b) is an adoption of Rule 51 of the Federal Rules of Civil Practice and decisions of federal courts are authoritative though not binding on the question of its construction. It has been held consistently by the federal courts that the failure to inform counsel of the court’s proposed action on the refusal to charge is not reversible error per se, but that in order to warrant a reversal or new trial for failure to comply with this rule, prejudice must be shown. Dallas R. &c. Co. v. Sullivan, 108 F2d 581 (CCA 5) (1940); Levin v. Joseph E. Seagram & Sons, Inc., 158 F2d 55 (CCA 7) (1946), cert. den. 330 U. S. 835 (67 SC 971, 91 LE 1282); *457Downie v. Powers, 193 F2d 760 (CCA 10) (1951); Gwinett v. Albatross S. S. Co., 243 F2d 8 (CCA 2) (1957), cert. den. 355 U. S. 828 (78 SC 40, 2 LE 41); Hardigg v. Inglett, 250 F2d 895 (CCA 4) (1957); Garland v. Material Service Corp., 291 F2d 861 (91 ALR2d 832) (CCA 7) (1961); Sablosky v. Paramount Film Distributing Corp., 137 FSupp. 929 (DC Pa.) (1955); Tyrill v. Alcoa S. S. Co., 185 FSupp. 822 (DC NY) (1960); Finkle v. New York, N. H. & H. R. Co., 26 FRD 9 (DC Conn.) (1960); United States v. 2,877.37 Acres of Land, 52 FSupp. 696 (DC Tex.) (1943).
Argued February 7, 1974 Decided June 28, 1974 Rehearing denied July 18, 1974 Swift, Currie, McGhee & Hiers, Clayton H. Farnham, for appellant. Shulman & Shulman, Arnold Shulman, Alembik & Alembik, Aaron I. Alembik, for appellee.The burden is on the complaining appellant to show that he was harmed and it was not shown in this case. Obviously the party not complaining, the appellee, does not have the burden of showing that the party complaining was not in fact harmed. Furthermore, the enumeration of error going to the failure to charge the request was not argued and thus was abandoned.
Nothing contained herein should be construed as placing our approval on the failure of a trial judge to comply with statutory requirements.
Judgment affirmed.
Bell, C. J., Eberhardt, P. J, Quillian and Webb, JJ., concur. Deen, Evans, Clark and Stolz, JJ., dissent.