Beal v. Braunecker, 74879

• Decision Date: 04 December 1987
• Docket Number: No. 74879,74879
• Citation: 185 Ga.App. 429,364 S.E.2d 308
• Parties: BEAL v. BRAUNECKER.
• Court: Georgia Court of Appeals

Page 308

364 S.E.2d 308

185 Ga.App. 429

BEAL v. BRAUNECKER.

No. 74879.

Court of Appeals of Georgia.

Dec. 4, 1987.

Rehearing Denied Dec. 18, 1987.

Certiorari Denied Jan. 14, 1988.

Steven D. Harris, Nancy P. Phillips, Atlanta, for appellant.

Glenn Frick, Sue K.A. Nichols, Atlanta, for appellee.

SOGNIER, Judge.

Harvey Beal brought suit against Peter Braunecker seeking $6,200 in actual damages, as well as sums for pain and suffering and exemplary damages, for injuries Beal incurred in an automobile collision. In a special verdict, the jury awarded Beal $5,600 in damages but specifically found that no aggravating circumstances existed in the act or intention. Beal appeals.

The evidence adduced at trial shows that appellee, driving an Olds Cutlass, was in the center turn-only lane proceeding to turn left in front of appellant's on-coming jeep. The evidence conflicts whether appellee stopped with the front end of the vehicle protruding into appellant's lane prior to appellant's arrival at the interception point or whether appellee turned his automobile into appellant's lane just as appellant neared. The front left tire of appellant's jeep collided with the left front bumper of appellee's Cutlass with the result that appellant broke his left clavicle, among other injuries. Evidence was introduced that appellee was operating the Cutlass while under the influence of alcohol, his blood alcohol registering as .28 percent on the breath analysis test administered to him by the police officer investigating the accident. Evidence was also adduced at trial that the shoulder appellant broke in the collision had been injured in incidents both prior to and after the collision in question.

1. Appellant contends the trial court erred by failing to give his Request to Charge Number 9, taken from language in Moore v. Thompson, 255 Ga. 236, 336 S.E.2d 749 (1985), that "[e]vidence that the defendant's driving under the influence of alcohol caused the plaintiff's injuries is evidence of wilful misconduct, wantonness, and that entire want of care which raises the presumption of conscious indifference to the consequences. Therefore, driving under the influence of alcohol so as to cause personal injuries to another is an aggravating circumstance in the act which would authorize the jury to give punitive damages to deter the wrongdoer from repeating the act." Id. at 237, 336 S.E.2d 749.

Appellant argues that this language in Moore stands for the proposition that, upon a determination by the jury that the defendant's driving under the influence of alcohol caused the plaintiff's injuries, the jury must find as a matter of law that aggravating circumstances exist. We do not agree.

In Ransone v. Christian, 49 Ga. 491 (1873), the Supreme Court reversed the jury verdict and judgment thereon because the trial court charged the jury it must consider a certain set of facts to be a circumstance of aggravation. The basis for this reversal was the Supreme Court's recognition that whether or not the facts of the case shall have the effect of aggravating circumstances so as to support an award of punitive damages, is a question for the jury, and not the court. "[I]t is for the jury to say whether there are circumstances of aggravation; that is, whether the admitted facts are of such a character as to constitute matter requiring punitive damages." Id. at 504. See also Townsend, etc., Enterprises v. W.R. Bean & Son, 117 Ga.App. 109, 113(6), 159 S.E.2d 776 (1968); Bonds v. Powl, 140 Ga.App. 140, 142(2), 230 S.E.2d 133 (1976); Mr. Transmission v. Thompson, 173 Ga.App. 773, 775, 328 S.E.2d 397 (1985).

Ransone was not implicitly overruled in Moore because the Supreme Court in Moore did not purport to remove from the jury's determination the question whether the evidence as admitted gives rise to aggravating circumstances. As the Supreme Court stressed in Moore, "it should be noted that we are dealing here with the admission of evidence on the issue of punitive damages." Id. 255 Ga. at 237, 336 S.E.2d 749. Thus, when appellant's interpretation of the above-cited language in Moore is read in context with the opinion as a whole, it is apparent that rather than mandating a jury find that aggravating circumstances exist whenever a defendant's driving under the influence of alcohol caused the plaintiff's injuries, as asserted by appellant, the Supreme Court instead was reiterating that unjustified, intoxicated driving when it causes personal injuries to another is evidence of aggravating circumstances. As such, it is evidence admissible at trial.

The trial court charged the jury that should they find the defendant was driving while intoxicated and that a causal connection existed between that intoxication and the plaintiff's injuries, then the defendant's driving under the influence could be considered by the jury as evidence, along with all the other evidence, when they deliberated on whether or not aggravating circumstances existed. Although a determination that appellee's driving under the influence of alcohol caused appellant's injuries would support a finding that aggravating circumstances existed, the trial court did not err by refusing to instruct the jury that they must find such aggravating circumstances existed. Compare Ransone, supra at 505. The charge given by the trial court was not in conflict with Moore and avoided the confusion, as demonstrated by appellant's argument on appeal, that a use of the precise language in Moore might have created. "Even though language used by an appellate court in a decision may embody sound law, it is not always appropriate to employ such language in instructing the jury. Such an instruction may be helpful in explaining a principle of law but ambiguous to a jury." Davis v. Cincinnati Ins. Co., 160 Ga.App. 813, 815, 288 S.E.2d 233 (1982). Accordingly, the trial court did not err by refusing to instruct the jury as to appellant's requested charge.

2. Appellant contends the trial court erred by excluding evidence regarding appellee's three charges for driving under the influence of alcohol and the dispositions thereof which occurred prior to the incident in question. The record, perfected by appellant, reveals that the dispositions of the three charges resulted in one plea of nolo contendere to driving under the influence, one plea of nolo contendere to public drunkenness and one plea of guilty to public drunkenness. Appellant argues that under Moore, supra, the trial court should have admitted this evidence and bifurcated the trial so as to try the issue of punitive damages separately from the issue of liability. We note that appellant sought to introduce this evidence solely on the issue of punitive damages rather than for impeachment purposes, see Tilley v. Page, 181 Ga.App. 98, 99-100(4), 351 S.E.2d 464 (1986), or on the issue of liability for which the rule remains that proof of defendant's prior driving record or evidence of defendant's similar acts or omissions on other and different occasions is inadmissible. See Whidby v. Columbine Carrier, 182 Ga.App. 638-639(1), 356 S.E.2d 709 (1987); see also Moore, supra 255 Ga. at 237, 336 S.E.2d 749.

In Moore, the Supreme Court held that evidence of defendant's guilty pleas to driving under the influence before and after the incident in question is admissible on the issue of punitive damages. Id. at 237, 336 S.E.2d 749. Although appellant's evidence did contain one plea of guilty, it was to the offense of public drunkenness. This evidence, along with the evidence regarding appellee's nolo contendere plea to the same offense, was not relevant as to the issue of appellee's unjustified intoxicated driving and the trial court did not abuse its discretion by refusing to admit it. See generally Georgia American Ins. Co. v. Varnum, 179 Ga.App. 195, 197(2), 345 S.E.2d 863 (1986). As to appellee's nolo contendere plea to driving under the influence, OCGA § 17-7-95(c) provides: "Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose...." We are not persuaded by appellant's policy arguments that we should ignore the plain language of this statute. Thus, the trial court did not err by excluding this evidence and it follows that the trial court's refusal to bifurcate the trial was not error.

3. Appellant argues the trial court erred by not granting his motion for a new trial on the ground that the verdict was inadequate as a matter of law in that the amount awarded was approximately $600 less than appellant's actual damages. Appellant cites Tallent v. McKelvey, 105 Ga.App 660, 662(3), 125 S.E.2d 65 (1962) and Brooks v. Williams, 127 Ga.App. 311, 313(2), 193 S.E.2d 231 (1972), which set forth the rule that "on the general grounds of a motion for new trial, where the verdict is in an amount not supported by the evidence, and where there is no legal justification for reducing it as against a plaintiff who cannot have been guilty of comparative negligence or in some other manner contributed to her own misfortune, a new trial must be granted. [Cits.]" Brooks, supra. Appellant contends that rule is applicable here thereby requiring the grant of his motion for new trial. We do not agree.

In addition to evidence indicating that prior and subsequent injuries aggravated the harm to appellant's left shoulder, there was evidence that appellant observed appellee's vehicle, with its headlights on and its left turn indicator operating, while 200 feet away, and saw appellee attempt to cross the line of traffic in front of appellant's car. Although the evidence was conflicting whether the front of appellee's vehicle was already protruding into appellant's lane at the time appellant approached, appellant testified he noticed that the traffic ahead of him had slowed down ten miles an hour in reaction to appellee's vehicle in the turn-only...