Vickery v. PPG Industries, Inc. , 210 Ga. App. 339 ( 1993 )

Pope, Chief Judge,

concurring specially.

The officer did not simply testify “as to what actions he took in filling out the incident report” as stated in Division 1 (b); rather, he read from the report his opinion that plaintiff misjudged the clearance and that this misjudgment contributed to the accident. In Smith v. Fee, 197 Ga. App. 483 (398 SE2d 801) (1990), we held it was error to allow a police officer to state his opinion regarding whether an act or omission of one of the parties was a contributing cause of an accident, as it was for the jury to consider all the testimony and other evidence and determine what acts or omissions of the parties, if any, contributed to the cause of the plaintiff’s injuries.¹ See also Emory v. Dobson, 206 Ga. App. 482 (426 SE2d 50) (1992). The officer’s opinion in this case was read from his incident report, and the officer’s opinion in Fee was based on his investigation. However, this is not a meaningful distinction and does not change the fact that the challenged testimony invaded the province of the jury. I therefore conclude that admission of the officer’s opinion in this case was error.

Consequently, I must address the question left open by the majority in Division 1 (a): Was this issue properly preserved for appellate review? When defendant began questioning the officer about the portion of the incident report titled “Contributing Factors,” plaintiff objected generally to any question asking for an opinion going to any ultimate issue in the case. This general objection was sustained. Defense counsel then asked the officer what he marked in the “Contributing Factors” section of the report, and plaintiff again objected. The witness responded before the court ruled on this objection, however, and plaintiff did not pursue his objection further. He did not move to strike the officer’s testimony and did not move for mistrial. Nor did he ask for curative instructions, even though this was the type of error which could probably have been cured by a proper jury instruction.

Plaintiff attempts to characterize his initial objection as a motion in limine, as no further action is required to preserve the issue for appellate review when evidence barred by a previously granted motion in limine is offered at trial. See Reno v. Reno, 249 Ga. 855 (295 SE2d 94) (1982). However, plaintiff’s general objection was not a motion in limine — not because it was made during rather than before the trial, see Scott v. Chapman, 203 Ga. App. 58 (1) (416 SE2d 111) (1992), but because it was made in the presence of the jury. “ ‘ “The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury. ... It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which the motion in limine is intended to reach.” [Cit.]’ [Cit.]” Reno, supra at 855-856. Accordingly, to “require the successful movant to object when evidence encompassed by the motion in limine is nevertheless offered at trial, would defeat the purpose of the motion in limine, as the movant would be forced, in the presence of the jury, to call special attention to prejudicial evidence which the trial court had previously ordered to be excluded from the jury’s consideration.” Id. at 856. In the instant case, this concern is not present because the initial objection was made in the presence of the jury. Thus, plaintiff should have made a further motion or objection to allow the trial court to correct or cure the error, and his failure to do so precludes reversal on this ground. For these reasons, I agree that the judgment must be affirmed.

Decided September 22, 1993. Hughes & Gibson, Gilchrist M. Gibson, for appellant. Shapiro, Fussell, Wedge & Smotherman, Herman L. Fussell, Scott I. Zucker, John W. Greer III, for appellee.

1 Although two judges specially concurred in Fee with respect to the writer’s harmless error analysis, all judges on the panel agreed that it was error to admit the officer’s testimony. See Fee, 197 Ga. App. at 484-485.