Gunter v. Tullot

Benham, Judge. Appellant and appellee were involved in a motor vehicle collision in which both parties sustained injuries. Appellee filed suit against appellant, and a jury found in favor of appellee, awarding her $32,000. Appellant brings this appeal, contending the trial court erred by al [881] lowing harmful and prejudicial closing argument by appellee’s attorney to go unchecked. Inasmuch as the parties did not arrange for the takedown of the closing arguments, the record does not contain a transcript of the offending remarks or the objection made thereto. Although we do not have a transcript or a supplement thereto (see OCGA § 5-6-41 (c)), the trial court made a finding of fact concerning the issue at the hearing on the motion for new trial. The trial court recalled that appellee’s attorney had stated in his closing argument that “[appellant] was out there drunk on the street.” While the trial court’s finding presents to this court the offending remark, the record is still devoid of appellant’s objection to the statement. “When allegedly improper argument is made to the jury, opposing counsel must object at trial or otherwise invoke a ruling of the trial court. Failure so to object constitutes waiver. [Cits.]” Verde v. Granary Enterprises, 178 Ga. App. 773 (5) (345 SE2d 56) (1986). Since “[t]he burden is on the party asserting error to show it affirmatively .by the record [cit.]” (Ragan v. Smith, 188 Ga. App. 770 (2) (374 SE2d 559) (1988) (emphasis supplied)), and the record contains no such showing, we must presume the trial court took the proper action. See Smith v. Manley, 96 Ga. App. 158, 161 (99 SE2d 534) (1957). See also Wright v. Wright, 170 Ga. App. 652 (3) (317 SE2d 888) (1984). Judgment affirmed. Birdsong, J., concurs. Deen, P. J., concurs specially.