Seaney & Co. v. Katz , 132 Ga. App. 456 ( 1974 )

Stolz, Judge,

dissenting.

"In all cases, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may present to the court written requests that it instruct the jury on the law as set forth therein. Copies of requests shall be given to opposing counsel for their consideration prior to the charge of the court. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but shall instruct the jury after the arguments are completed. The trial judge shall file with the clerk all requests submitted to him, whether given in charge or not.” Code Ann. § 70-207 (b) (Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078).

While the majority opinion "disapproves” of the trial judge’s action, it affirms the case. In doing so, it has made the statute "a toothless tiger,” "a fish that cannot swim,” indeed, a law that it is not necessary to enforce. The statute makes it mandatory (using the word "shall”) for counsel to give copies of his written request to opposing counsel. The statute likewise makes it mandatory (again using the word "shall”) for the court to inform counsel of its proposed action upon the written requests prior to their argument to the jury. The majority argues that counsel has not shown that his case was harmed. The harm results anytime a litigant is denied a right that is given him by statute. This is particularly true where, as here, counsel has specifically sought information regarding the court’s action, but was not given it. The majority cites a number of cases decided within the federal court system as persuasive, but not binding authority. Yet, the same line of cases holds that " 'an essential purpose of Rule 51 is to permit counsel to argue intelligently upon the evidence, within the framework of the applicable law, and also, by reason of advance notice as to the disposition of requests for instructions, to alert him to take appropriate exceptions following delivery of the charge.’ ” Smith v. Poteet, 127 Ga. App. 735, 742 (195 SE2d 213) and cit. The above quotation would seem to be sufficient to show the needed harm, if indeed such is required. In Poultryland, Inc. v. Anderson, 200 Ga. 549, 562 (37 SE2d 785), a case where witnesses were not sequestered pursuant to counsel’s request, the Supreme Court, in a unanimous decision, stated, "It is no answer to the violation of the mandatory rule to say that the record does not show any harm to have resulted to the defendants because of this error, since it has been held in numerous cases that, whenever the rights of a party are withheld or violated, the presumption of law is that he has been injured unless the contrary plainly appears ... [citing many Georgia cases].”

The effect of the majority opinion is to emasculate Code Ann. § 70-207 (b). If this type of surgery is to be performed, let it be done by the General Assembly — the creator of the Act in question. For my part, I will have none of it, and respectfully dissent.

I am authorized to state that Judges Deen, Evans and Clark concur in this dissent.