Starks v. Robinson ( 1988 )

On Motion foe Rehearing.

Movant/appellant contends that our decision failed to follow certain cases which were more recent than those cited in the opinion as well as others which are urged as controlling. To clear up any misapprehension, although our Supreme Court has abolished the compulsive aspect of stare decisis for its decisions, Hall v. Hopper, 234 Ga. 625, 629 (3) (216 SE2d 839) (1975), it still remains as a persuasive force. Simpson v. Dickson, 167 Ga. App. 344, 346 (306 SE2d 404) (1983). Moreover, our rules provide “if there is a special concurrence without a statement of agreement with all that is said in the opinion or concurrence in the judgment only, it shall be a physical precedent only.” Court of Appeals Rule 35 (b). Thus, assuming there was a conflict, we are not compelled to adopt a recent decision of ours rather than one of more ancient vintage nor will we follow a decision in which one judge concurred in the judgment only (see e.g. Karlan v. Enloe, 129 Ga. App. 1 (198 SE2d 331) (1973)) in preference to several cases generally concurred in by all the judges on the division (see McDonald, supra, and cases cited in Division 4 of the opinion).

This court is bound by Whaley v. Sim Grady Machinery Co., 218 Ga. 838 (131 SE2d 181) (1963). See 1983 Ga. Const., Art. VI, Sec. VI, Par. VI. However, we did not overlook that previously cited case (see Court of Appeals Rule 48 (f)) which recognized the sound discretion of the trial court and only mandated that the requirements of what is now OCGA § 15-12-133 be observed. That code section confers the right to question a prospective juror regarding “the relationship or acquaintance of the juror with the parties or counsel therefor.” Counsel had withdrawn and been excluded from any participation in this case and, as was held in the original opinion, the trial court did not err in refusing to permit specific questions regarding them.

Decided October 14, 1988 — Rehearing denied November 7, 1988 Greer, Klosik & Daugherty, John F. Daugherty, Robert J. McCune, for appellant. Greene, Buckley, DeRieux & Jones, Frank C. Schenck, John D. Jones, for appellees.

Judgment adhered to.