Price v. Whitley Construction Co.
Price v. Whitley Construction Co.
Opinion of the Court
1. (a) The jury, by its verdict, has established the fact that the defendant was negligent and is liable to the plaintiff, at least in the sum of $4,000. See Anglin v. City of Columbus, 128 Ga. 469, 472 (57 S. E. 780). The only question presented here is: Was the verdict, under the evidence, grossly inadequate? This will appear from the amendments to the original motion. The germane issue which is now before this court is, whether or not the plaintiff received the injuries and pain and suffering as a result of the collision or whether or not the injuries of which she complains existed mainly prior to the collision. There' was medical evidence pro and con on this point, and besides mainly the evidence of the plaintiff where she claims that her condition at the time of the trial was the result of her condition which developed and was caused by the collision. Counsel for the plaintiff first calls our attention to the presumption that damages awarded to the plaintiff are so inadequate as to suggest gross mistake or undue bias on the part of the jury. In support of this contention, our attention is called to Slaughter v. Atlanta Coca-Cola Bottling Company, 48 Ga. App. 327 (172 S. E. 723), as follows: “If the plaintiff was entitled to recover anything (and the jury has so found), she was entitled to recover damages commensurate with the injury sustained by her.” Counsel cites also Holland v. Williams, 3 Ga. App. 636 (60 S. E. 331). On this' point counsel for the plaintiff call our attention also to Ransome v. Christian, 49 Ga. 491, 502, as follows: “In ordinary cases, when the verdict is for the plaintiff or defendant, if there be an error, and the evidence is so strongly with the verdict that the result must have been the same, even had there been no error, it is mere play to send the case back on a theoretical mistake of the judge. But when the amount of the verdict is a matter to be measured by the enlightened conscience of a jury, then it is of the utmost importance that the jury shall not have been in the least misled as to the principles upon which their verdict is to be founded, or any evidence excluded which may have affected the final decision.”
(b) Counsel for the defendant, on ground numbered 6, calls attention to the contention of the plaintiff that the court erred in excluding hearsay testimony by the plaintiff, offered to show her motives and explain her conduct with respect to a vital issue
The plaintiff contends that the question of damages is the only real issue in this case and the only defense offered to the amount claimed by the plaintiff concerned her motives and whether or not her suffering was physical or merely temperamental, and in par
(c) The next contention presented by the plaintiff is that the trial court erred in charging the jury, in the language of Code § 38-119, concerning the presumption arising from failure to produce evidence, as set forth in ground numbered 7. In support of the contentions of the plaintiff that the court committed reversible error in this regard, the record reveals that the husband of the plaintiff was in court, sworn as a witness, sequestered, but was not called on the trial. It is contended that this charge was an inference that evidence had been withheld and the charge injected for the jury’s consideration an unauthorized inference under the evidence in the case, and was not only erroneous but also harmful. In support of this contention, our attention is called to a number of decisions as follows: Central of Ga. Ry. Co. v. Bernstein, 113 Ga. 175 (5) (38 S. E. 394); Alabama Great Southern Ry. Co. v. Hamby, 56 Ga. App. 215 (2) (192 S. E. 467); Bank of Emanuel v. Smith, 32 Ga. App. 606 (1, 2, 3) (124 S. E. 114); Shields v. Georgia Ry. &c. Co., 1 Ga. App. 172 (2) (57 S. E. 980); Anderson v. Southern Ry. Co., 107 Ga. 500 (2) (33 S. E. 644); Schnell v. Toomer, 56 Ga. 168 (2); Brothers v. Horne, 140 Ga. 617 (3) (79 S. E. 468); Howard v. Obie, 190 Ga. 394 (1) (9 S. E. 2d 666). It is suggested that these decisions are applicable and controlling concerning the quoted excerpt from the charge of the court; that it is a reversible error since the charge may have, and probably did, affect the amount of the verdict returned. We have examined those decisions thus relied on by the plaintiff in support of (a), (b), and (c) of her argument, in the light of the facts in those respective cases, and find them applicable to those cases; but under the facts of the instant case we feel compelled to call attention to other decisions which are applicable under the facts of this case.
2. The Supreme Court held in Howard v. Lee, 208 Ga. 735, 739 (69 S. E. 263): “In passing on the general grounds of a motion for new trial, it is the duty of this court to determine
In Hight v. Steely, 86 Ga. App. 137, 140 (70 S. E. 2d 886), this court said: “This court has strongly held in a long line of decisions that, although the evidence before a trial jury might have authorized a different verdict, where there is enough evidence to support the verdict found, this court will not reverse the judgment of the trial court in refusing a new trial on only general grounds. See Marcus v. State, 76 Ga. App. 581 (1) (46 S. E. 2d 770); Scott v. Gillis, 202 Ga. 220 (2) (43 S. E. 2d 95). It is the duty of the court to construe the evidence most strongly in support of a verdict which has been approved by the trial judge. Brown v. Meador, 83 Ga. 406 (9 S. E. 681); Associated Mutuals v. Pope Lumber Co., 200 Ga. 487, 496 (37 S. E. 2d 393). ‘The verdict was authorized by the evidence and has the approval of the trial court. No error of law appearing, it will not be disturbed by this court.’ Fowler v. State, 82 Ga. App. 197 (4) (60 S. E. 2d 473).”
In Smith v. Merck, 206 Ga. 361, 375 (57 S. E. 2d 326) the Supreme Court held: “We have carefully read and reread the evidence in the record, and cannot say that there is not some evidence to support the verdict. Our function is to review the sufficiency of the evidence, and not to determine its weight. Though the evidence might have authorized a different verdict (Stephenson v. Meeks, 141 Ga. 561 (4), 81 S. E. 851), or the verdict is supported by only slight evidence (Ala. Great So. R. Co. v. Brock, 141 Ga. 840 (2), 82 S. E. 225), or the evidence is conflicting or preponderates against the verdict (Slaton v. Fowler, 124 Ga. 955 (1), 53 S. E. 567), where no material error of law appears, this court will not disturb the trial judge’s judgment in overruling the motion for new trial. As was said in Lavender v. Kurn, 327 U. S. 645, 653 (66 Sup. Ct. 740, 90 L. ed. 916): ‘It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when
See Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 707 (181 S. E. 315) as follows: “The amount of damages returned by the jury in such a verdict, for pain and suffering, sustained because of alleged negligence, being governed by no other standard than the enlightened conscience of impartial jurors, the question of inadequacy of the verdict is not one which can be raised by the general grounds in a motion for new trial.” See W & A R. Co. v. Burnett, 79 Ga. App. 530 (54 S. E. 2d 357) and Southern Ry. Co. v. Miller, 3 Ga. App. 410, 412 (59 S. E. 1115).
We have no authority as a matter of law to hold that the verdict of $4,000 is so grossly inadequate as to disclose gross mistake or undue bias on the part of the trial jury.
We come next to consider further the hearsay-testimony issue, as set forth in ground numbered 6 quoted hereinabove. In this ground the issue is concerning what the plaintiff’s husband told her a physician told him. The Supreme Court held in Todd v. State, 200 Ga. 582, 588 (37 S. E. 2d 779): “Hearsay, when admissible, under this rule, derives its competency from the necessity of the case.” It must be kept in mind in the instant case that the husband of the plaintiff was in court and could have been called to testify as to what he knew. Moreover, the record reveals abundant evidence concerning the same issue, that is, why the plaintiff changed from one doctor to another. See Southern Ry. Co. v. Ward, 131 Ga. 21 (4) (61 S. E. 913); County of Butts v. Hixon, 135 Ga. 26 (2) (68 S. E. 786); Stanfield v. Seaboard Airline Ry. Co., 33 Ga. App. 29 (2) (125 S. E. 504). There are many other cases to the same effect.
In Bryant v. State, 191 Ga. 686 (13 S. E. 2d 820) and in Brown v. Matthews, 79 Ga. 1, 2 (4 S. E. 13), the Supreme Court stated that the rule as to hearsay evidence must be guarded carefully. Under the record of this case, the court did not err in refusing to admit the hearsay evidence or testimony.
We next consider the issue as to the charge of the court on the presumption arising from the failure to produce evidence. See Beardsley v. Suburban Coach Co., 83 Ga. App. 381, 391 (63 S. E. 2d 911), wherein this court said: “A party is not required to produce all witnesses; he may rest his case upon one witness, though another be accessible; but he subjects himself to the presumption arising from failure to so produce. Southern Ry. Co. v. Acree, 9 Ga. App. 104 (2) (70 S. E. 523). . . While it is true that this principle is not applicable to criminal cases (Whitley v. State, 14 Ga. App. 577 (5), 81 S E. 797; Jones v. State, 14 Ga. App. 811, 82 S. E. 470), ... it is true that in
In Lasseter v. Green, 202 Ga. 148 (2) (42 S. E. 2d 480), the Supreme Court said: “There is no merit in the special ground complaining that the court erred in charging § 38-119 of the Code, relating to the presumption arising where one who has evidence in his power and within his reach, to repel a charge or claim against him, fails to produce it. It appeared that two sons of the defendant heard a part or all of the conversation at the time the oral contract was made. The defendant relied upon his own testimony alone as to the conversation, and made no effort to explain the failure of his sons to testify. See Cotton States Fertilizer Co. v. Childs, 179 Ga. 23 (174 S. E. 708); Blanchard v. Ogletree, 41 Ga. App. 4 (152 S. E. 116); Moye v. Reddick, 20 Ga. App. 649 (93 S. E. 256). It follows that there was no error in denying a new trial. Judgment affirmed. All the Justices concur.”
There was evidence which authorized the court to charge the principles of law set forth in Code § 38-119. For instance, the husband of the plaintiff was in court, summoned there by the plaintiff, and it would seem from the record that the husband of the plaintiff knew a great deal about the infirmities of his wife before the crash of the truck into the trackless trolley, as well as her condition after such collision.
The court did not err in denying the motion for new trial as amended.
Judgment affirmed.
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