Overground Atlanta, Inc. v. Dunn , 191 Ga. App. 188 ( 1989 )

Deen, Presiding Judge,

concurring specially.

I concur in the majority opinion and agree that Brannan Auto Parts v. Raymark Indus., 183 Ga. App. 82 (357 SE2d 807) (1987), need not be overruled.

In Brannan the potential for an inconsistent verdict was evident on the face of the proposed jury verdict form, which was given to counsel prior to trial. Such is not the case in Overground. Further, defense counsel expressed in Brannan some generalized dissatisfaction with the form; his objection, however (if indeed it could be deemed to have risen to the level of that term), lacked specificity and addressed not the individual versus corporate situation, but rather the sheer number of defendants. Moreover,the trial court offered defense counsel two opportunities to revise the proposed verdict form, but the latter took advantage of neither. Clearly, counsel’s conduct amounted to waiver, and this court was therefore powerless to address an enumeration which was not raised below. In Overground, by contrast, no such situation existed.

Furthermore, under the facts of Brannan, there was little, if any, evidence specifically implicating any of the individual defendants, and yet there was ample evidence to support a finding that the alleged conversion had actually occurred. The jurors apparently found the weight of the evidence of the latter fact sufficient to cause them to lay the blame on some individual or some entity; but conversely, the jurors apparently found the evidence against each of the individual defendants to be lacking in weight. It is axiomatic, of course, that this court cannot assess the weight of the evidence. .

It is true that, on its face, a finding for the individual defendants and against the corporate defendant is illogical. As noted, supra, however, it was not the actual lack of logic or consistency to which counsel addressed his generalized remarks at trial, but rather to the fact that the jury was given several options as to verdicts against several defendants and only one option “For the defendants.” This is quite different from, and essentially unrelated to, the issue actually enumerated as error in Brannan, and an enumerated error cannot be expanded — or twisted — into something else.

The issue in Overground is not the same as that in Brannan, and the overruling of Brannan would in these circumstances amount to an exercise in irrelevancy.