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Levine v. Choi9/16/1999
ligence of the defendants. (Emphasis supplied.)
The Levines contend this charge raised the standard of proof to one of certainty and was inconsistent with the "preponderance of the evidence" burden applicable to civil cases. See OCGA ยง 24-4-3.
This charge was approved in Leslie v. Williams, 235 Ga. App. 657, 659 (2) (510 SE2d 130) (1998), and other decisions. But Herr v. Withers, 237 Ga. App. 420, 421-422 (515 SE2d 174) (1999), disapproved of these decisions and held it was error to give the charge. Nevertheless, where the charge as a whole properly informs the jury of the appropriate burden of proof, reversal is not required. Whitt v. State, 257 Ga. 8, 9 (3) (354 SE2d 116) (1987). Giving the correct instruction on several other occasions in other parts of the charge may cure the erroneous instruction. Williams v. State, 267 Ga. 771, 773-774 (2) (482 SE2d 288) (1997).
Here the court repeatedly instructed the jury that the standard was a preponderance of the evidence (i) during the initial charge at the beginning of trial, (ii) at the end of plaintiff's evidence, and (iii) on seven occasions during the final jury instructions. The court further instructed the jury to consider the charge in its entirety. The charge as a whole adequately and fairly conveyed that plaintiffs' burden of proof was a preponderance of the evidence.
Judgment affirmed. Barnes and Ellington, JJ., concur.
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