Leslie v. Williams

Pope, Presiding Judge.

Sheila Leslie sued Nikita Williams for injuries she allegedly sustained in an automobile accident. Before trial, Williams stipulated to her negligence, leaving only the issues of proximate cause and damages for trial. After a trial on these issues, the jury returned a verdict in favor of Williams. Leslie appeals, contending the verdict is not supported by the evidence and the court erroneously instructed the jury on her burden of proof regarding causation. The contentions are *658without merit and we affirm the judgment.

1. Before addressing the merits of Leslie’s appeal, we must consider Leslie’s failure to file an additional copy of her enumerations of error separate from those set forth in her brief. Although we do not condone Leslie’s failure, unlike Judge Ruffin’s dissent we cannot conclude that it requires a dismissal of her appeal. And while the procedure suggested by Judge Beasley — that we order Leslie to file separate enumerations of error — may be appropriate in some cases, such a procedure is not needed in every appeal lacking separately filed enumerations, but should be used only in those cases in which it is not apparent from the notice of appeal, briefs and record exactly what errors are alleged. Instead, in a case such as the instant one in which there is no question as to exactly what errors are alleged, we should not elevate form over substance and should not waste judicial time and resources by ordering the appellant to file another document, but should simply rule on the merits of the appeal.

There is no question that Leslie failed to comply with Court of Appeals Rule 22 (a), which states: “The enumerations of error shall be filed as a separate document with the Clerk of this Court. . . . This is in addition to Part 2 of the brief. See Rule 27 (a) (2).” She did, however, comply with Rule 27 (a) (2) by setting forth enumerations of error in her brief. Those enumerations definitely and specifically designate the alleged errors: the first enumeration contests the court’s jury charge on Leslie’s burden of proof and the second enumeration challenges the sufficiency of the evidence supporting the verdict.

Consequently, this case is materially distinguishable from those cited by the dissent. In Wordu v. State, 216 Ga. App. 552, 553 (1) (455 SE2d 101) (1995), this Court dismissed an attempted out-of-time appeal, which contained no enumerated errors, only after the appellant did not comply with a court order directing him to file enumerations of error. In Lewis v. State, 226 Ga. App. 344 (487 SE2d 533) (1997), we dismissed the appeal because not only did the appellant fail to file any enumerations of error, but he also failed to comply with several requirements for briefs set out in Court of Appeals Rule 27. In Miles v. Emmons, 234 Ga. App. 487 (507 SE2d 762) (1998), the appeal was dismissed because again there were no enumerations of error filed. The special concurrence in that case noted: “This is not a case, therefore, where a party enumerated errors for the Court in his brief, but simply forgot to file the enumerations as a separate document.” Unlike Miles, Lewis, and Wordu, the instant case is one in which Leslie did in fact enumerate errors for us in her brief, but did not also file the enumerations as a separate document.

We are required to construe the Appellate Practice Act liberally in order to reach a decision on the merits of every appeal and avoid dismissal of cases. OCGA § 5-6-30. “Where it is apparent from the *659notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” OCGA § 5-6-48 (f).1 Construing the Appellate Practice Act liberally, we shall not dismiss Leslie’s appeal, but instead we exercise our discretion to reach the merits of the case because it is apparent from Leslie’s notice of appeal, her brief, her enumerations of error in the brief, and the record exactly what judgment is appealed from and what errors are asserted.

2. Leslie asserts that the court improperly increased her standard of proof beyond preponderance of the evidence by giving the following jury charge: “[I]f you believe from the evidence adduced that the cause of any injury or medical condition which may have been suffered by the plaintiff cannot be determined with certainty but is a matter of speculation or conjecture, in that event you would not be authorized to find a verdict against the defendant in any amount. And in such instance it would be your duty to return a verdict in favor of the defendant as it is absolutely necessary for the plaintiff in order to recover damages from the defendant to show by a legal preponderance of the evidence that the loss complained of was proximately caused by the negligence of the defendant. I instruct you the law does not permit you to speculate or to guess about the existence of injury claimed.”

Contrary to Leslie’s assertion, this very charge was approved of in Royal v. Davis Hauling Co., 164 Ga. App. 409, 410-411 (2) (297 SE2d 333) (1982). Moreover, “[i]t is a fundamental rule that jury instructions must be considered as a whole in determining whether there was error in the charge. [Cit.]” Barham v. Levy, 228 Ga. App. 594, 595 (1) (492 SE2d 325) (1997). An examination of the entire charge and recharge in the instant case shows that the court fully and correctly instructed the jury on the burden of proof. See News *660Publishing Co. v. DeBerry, 171 Ga. App. 787, 790 (3) (321 SE2d 112) (1984).

3. Leslie complains that a verdict in her favor was demanded because Williams did not put on any evidence. The complaint is without merit. The jury considered evidence of Leslie’s prior back and neck injuries; of the seriousness, or lack of seriousness, of the collision; and of the time lapse between the accident and Leslie’s seeking of medical treatment. As the finders of fact, the jurors were authorized to conclude from all the evidence that Williams is not liable for Leslie’s alleged aggravated injuries. See Purvis v. Toole, 207 Ga. App. 189 (1) (427 SE2d 565) (1993); Davis v. McCray, 127 Ga. App. 281 (193 SE2d 200) (1972). Leslie’s challenge to the sufficiency of the evidence is without merit.

Judgment affirmed.

McMurray, P. J., Blackburn and Eldridge, JJ., concur. Andrews, C. J., Beasley and Ruffin, JJ., dissent.

Judge Beasley, citing her own special concurrence in Lewis v. State, supra, claims that OCGA § 5-6-48 (f) does not apply to the instant case because Leslie did not file separate enumerations of error. Contrary to Judge Beasley’s claim, OCGA § 5-6-48 (f) does not limit itself only to appeals in which separate enumerations of error have been filed. By its own terms, the Code section mandates that we consider the merits of any appeal in which it is apparent from any combination of the notice of appeal, the record or the enumerations of error what judgment is appealed from or what errors are asserted. Because the judgment appealed from and the errors asserted in the instant case are apparent, we must consider the appeal.