
    A94A1986.
    PETERS v. DAVIS.
    (449 SE2d 624)
   Birdsong, Presiding Judge.

Appellant/plaintiff Anthony Eugene Peters appeals from the jury verdict in favor of appellee/defendant Angela D. Davis a/k/a Angela D. Nance, the judgment, and the trial court’s denial of appellant’s motion for new trial. This is a suit for damages. Appellant averred certain injuries arising from an automobile collision when appellee’s car crossed the centerline striking appellant’s on-coming vehicle. Held:

1. Appellant’s enumeration that the trial court erred in denying a lew trial based upon the ground of insufficiency of evidence to support the jury’s verdict is without merit. “A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Citations, punctuation and emphasis omitted.) Estfan v. Poole, 193 Ga. App. 507, 509 (1) (c) (388 SE2d 373). “On appeal, this court must constru the evidence most strongly to support a verdict and judgment, [cit.' and every presumption and inference must be in favor thereof.” In the Interest of E. P. N., 193 Ga. App. 742, 747 (2) (388 SE2d 903 Further, it is not the function of an appellate court to weigh the evidence or to judge witness credibility (Horney v. Lawrence, 189 Ga. App. 376, 377 (3) (375 SE2d 629)); the jury resolves conflict in test: mony and this court will not substitute its judgment for that of th jury. Dade v. Dade, 213 Ga. 533 (1) (100 SE2d 181). There exist some evidence from which the jury could have concluded appellar was not entitled to recover damages for pain and suffering as appe lee’s negligence was not the proximate cause of appellant’s alleged ir juries, or because they did not give any weight to appellant’s evident regarding pain and suffering. Compare Purvis v. Toole, 207 Ga. App. 189 (1) (427 SE2d 565).

2. Appellant also contends the trial court erred in denying hii the right to make opening and concluding argument to the jury. Dui ing an in-chambers conference, appellee asserted the right to mat opening and closing argument on the grounds that “defendant he admitted liability already” and “has admitted a prima facie case.”

The parties have stipulated that, during an off-the-record discus sion, appellant objected that appellee had admitted only liability, bi had not admitted a prima facie case which includes causation an damage in addition to duty and breach. The trial court permitted aj pellee to make both opening and concluding argument; the jury r< turned a verdict for appellee/defendant.

Superior Court Rule 13.4 provides: “In civil actions, where tl burden of proof rests with the plaintiff, the plaintiff is entitled to tl opening and concluding arguments except that if the defendant ir troduces no evidence or admits a prima facie case, he shall be entitle to open and conclude.” Compare OCGA § 51-11-1. A prima facie cas is one “which has proceeded upon sufficient proof to that stage whe] it will support finding if evidence to contrary is disregarded” or “sue as will prevail until contradicted and overcome by other evidence Black’s Law Dictionary (5th ed.). The term “admits a prima fac case” for purposes of Rule 13.4 is an admission by defendant of sue a nature as to place the case in an evidentiary posture which suppori a finding in favor of plaintiff unless said admission is contradict™ and overcome by other evidence. Thus, defendant is entitled to opa and conclude argument only if he either elects not to offer evidence I he admits a prima facie case; mere direct examination of defendaii by his counsel when defendant has been called by plaintiff for crosj examination does not constitute the offering of evidence for this pul pose. See generally Ga. Prac. & Proc. (6th ed.), § 19-21. I

Appellee/defendant offered some evidence in his behalf by read-ng a portion of the deposition testimony of a local sheriff. Moreover, >rior to reading this testimony, appellee conceded on the record that, )y doing so, “I would be calling a witness.” Accordingly, unless appel-ee admitted the existence of a prima facie case, she was not entitled ;o open and conclude argument. Rule 13.4, supra.

“ ‘To state a cause of action for negligence in Georgia, it is necessary to establish the essential elements of duty, breach of that duty, md proximate causation, as well as damages, as a basis for liability or the injuries of another.’ ” Samuelson v. Lord &c., Inc., 205 Ga. App. 568, 572 (2) (b) (423 SE2d 268); Robertson v. MARTA, 199 Ga. App. 681 (405 SE2d 745); see Matthews v. DeKalb County Hosp. Auth., 211 Ga. App. 858 (1) (440 SE2d 743). A prima facie negligence :ase is one which supports findings for a claimant as to these elements.

“The right to open and conclude the argument in a case is an mportant right, and a refusal to accord it to the party entitled hereto is an error.” Ga. Prac. & Proc., supra. Moreover, because it is iuch an important right, “the presumption is that the party to whom t has been improperly denied has been injured.” Phelps v. Thurman, 74 Ga. 837 (a). Thus, as a general rule, the improper denial of the right to open and conclude “will work a reversal.” Chapman v. Atlanta &c. R., 74 Ga. 547 (a); Hart v. State, 88 Ga. App. 334 (2) (76 SE2d 561).

It appears clear from the totality of the record before us that in he case at bar it was appellee’s intent, in addition to her mere con-:ession of simple negligence, to concede a breach of an existing duty lot to injure appellant and that said breach was the direct and proxi-nate cause of certain injury (damages) to appellant. Appellee’s con-:ession of simple negligence in the pretrial order, coupled with the ecitations in the pretrial order that the issue remaining for jury de-ermination was that of “damages, if any” and that the type of dam-iges sought were limited to general damages for pain and suffering md future pain and suffering, is consistent with an intent on the part >f the parties that appellee was in fact admitting “liability” for the ncident and, thus, was conceding the existence of a prima facie case or plaintiff within the meaning of Rule 13.4. Moreover, the record ilso is replete with instances where both appellee and the trial court nade reference to appellee’s admission of liability and appellant’s ac-:eptance of the benefits flowing to him from those remarks. Further, ippellant elected to make no exceptions to the following portion of he trial court’s charge: “In this case . . . the defendant has admitted hat the automobile accident occurred as a result of her negligence. >he has admitted liability.” (Emphasis supplied.) (Further, the harge of the trial court did not include any charge of either direct or proximate cause or the necessity therefor.) By failing to take excej tion to this portion of the charges to the jury, appellant in effect a quiesced in the trial court’s prior tacit rulings that appellee had admitted liability and a prima facie case. See State v. Pattee, 201 Ga. App. 690, 693 (411 SE2d 751); Horan v. Pirkle, 197 Ga. App. 151 (397 SE2d 734). If appellant believed that a prima facie case had n< been admitted by appellee, at least by the time the case was submi ted to the jury, he had the duty to assert his contrary contention c the record in a timely manner. “ ‘A party cannot during the trial i¡ nore what he thinks to be an injustice, taking his chance on favorable verdict, and complain later.’ ” Bolden v. Carroll, 239 Ga. 188, 189 (1) (236 SE2d 270). Moreover, except for one brief instan» where appellant apparently posed a timely objection in an off-the-re ord proceeding in protection of his own interests, he elected as a ma ter of trial tactics consistently to acquiesce in the trial court’s declar tions that appellant had admitted liability and to reap the benefi accruing therefrom. One cannot complain of a ruling that his ov trial procedure and conduct procured or aided in causing. West Nodvin, 196 Ga. App. 825, 829 (3) (e) (397 SE2d 567); accord Perryman v. Rosenbaum, 205 Ga. App. 784, 790 (423 SE2d 673). Accoringly, we find appellant’s enumeration, as crafted, without merit.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

On Motion for Reconsideration.

Our holding is based on two separate grounds. First, after exar ining the record and transcript in its totality, we have concluded co trary to appellant’s assertion that appellee did under the attenda circumstances admit a prima facie case. Secondly, assuming arguem the trial court had erred in concluding that appellee had admitted prima facie case and in instructing the jury that appellee had adm: ted liability, appellant by his conduct and trial tactics ultimately a cepted the benefits flowing from this determination and acquiesced the ruling. Having aided in and accepted the benefits flowing from ti alleged error appellant cannot now complain. West v. Nodvin, supra Bolden v. Carroll, supra. Appellant’s contention that the trial cou erred in granting appellee/defendant the right to open and close arg ment is without merit for either or both of these reasons.

Appellant contends that he did object on the record to the tri court’s ruling allowing appellee to open and close argument, and cit in support of that contention a certain page of the transcript. T only grounds for appellant’s objection to the trial court’s ruling afl pearing in the cited portion of the record is appellant’s content! that solely by calling a witness appellee had lost the right to open ai close. This objection is without merit. As held in our opinion, app» ¡e/defendant could introduce evidence in her behalf and yet retain re right to open and close by admitting, as in this case, a prima facie ise. Moreover, if counsel desires to preserve an objection upon a spe-fic point, the objection must be entered timely on the record upon íat specific ground. See Norman v. State, 197 Ga. App. 333, 334 (2) 598 SE2d 395).

Decided October 5, 1994

Reconsideration denied October 19, 1994 —

Ronald C. Goulart, for appellant.

Rice, Kreitzer & Winer, Steven W. Kreitzer, for appellee.

Further, assuming arguendo appellant could adequately preserve n objection on other specific grounds merely by making it, as con-sded in appellant’s motion for reconsideration and as shown by the irtified record, during an “off-the-record” discussion, such objection as subsequently waived and abandoned when appellant acquiesced nd accepted the benefits flowing from the trial court’s determination íat appellee had admitted liability. In any event, the trial court did ot err as appellee, by admitting to a prima facie case, was entitled to 3en and close.

Motion for reconsideration denied.  