Boring v. McPherson, 71185

• Decision Date: 21 March 1986
• Docket Number: No. 71185,71185
• Citation: 344 S.E.2d 459,178 Ga.App. 623
• Parties: BORING v. McPHERSON et al.
• Court: Georgia Court of Appeals

Page 459

344 S.E.2d 459

178 Ga.App. 623

BORING v. McPHERSON et al.

No. 71185.

Court of Appeals of Georgia.

March 21, 1986.

Rehearing Denied April 4, 1986.

Certiorari Denied May 7, 1986.

Tom Pye, Doraville, for appellant.

Jack O. Morse, Atlanta, for appellees.

DEEN, Presiding Judge.

The appellees, Louise McPherson and her daughter, brought this action against the appellant, Don Boring, seeking damages for personal injuries sustained when they were bitten by a horse that they had bought from the appellant at an auction. Boring brings this appeal from an adverse jury verdict, and the denial of his motion for new trial.

1. Appellant's first four enumerations of error challenge certain portions of the trial court's charge to the jury. No objections were raised to the charge at trial, but appellant now asserts that the portions of the charge here objected to were harmful as a matter of law. See OCGA § 5-5-24(c).

The trial judge inquired as to whether defendants had any exceptions to the charge and counsel replied: "None, Your Honor." In the case cited in the dissenting opinion, Central of Ga. R. Co. v. Luther, 128 Ga.App. 178, 184, 196 S.E.2d 149 (1973) which is a civil case, a new trial was disallowed based on failure to make exceptions: "In compliance with our modernized procedure which eliminated 'sandbagging' the trial judge through subsequent microscopic inspection for errors in his charge, we now require counsel to state in open court their exceptions at its conclusion. Code Ann. § 70-207(a)." (The court in the cited case on page 184 defined "sandbagging" as "Poker parlance but more expressive than 'ambush.' ")

Luther further held on page 180, 196 S.E.2d 149: "In Nathan v. Duncan, 113 Ga.App. 630 (149 S.E.2d 383) this court stated the philosophy with which the appellate courts should consider an appeal where errors in a charge are asserted but without counsel having taken exception as required by Code Ann. § 70-207(a, b). It was there stated at p. 638 that 'It is the view of this court that the error in that frame of reference is not harmful unless a gross miscarriage of justice attributable to it is about to result. Generally, if counsel, who are skilled and trained in the law and who have prepared and tried the case, fail to see the error and enter an exception as provided in subsections (a) and (b), it is not to be regarded as harmful. Instances when the charge will be found ground for reversal under subsection (c) are likely to be very, very rare.' " (Emphasis supplied.)

2. The evidence of record is sufficient to support the verdict. In particular, we note in reference to Subdivision E of appellant's fifth enumeration that the verdict does not support his allegation that appellee Ann Laird McPherson was awarded any amount for future medical expenses. Also, as to Subdivision G, it is apparent in light of the trial court's charge that the portion of the jury's verdict awarding $20,000 for "lost future wages" in favor of Louise McPherson was in fact not an award for diminution of her capacity to earn money but rather was an award for loss of capacity to work, an item of general damages measured by the enlightened consciences of the jurors. As such, there was no need for appellee Louise McPherson to produce evidence of the pecuniary value thereof. See Wright v. Lail, 219 Ga. 607, 135 S.E.2d 418 (1964). Compare McDuffie County v. Rogers, 124 Ga.App. 442(3), 184 S.E.2d 46 (1971).

Judgment affirmed.

BANKE, C.J., McMURRAY and BIRDSONG, P.JJ., and CARLEY and BENHAM, JJ., concur, and also concur specially.

DEEN, P.J., also concurs specially.

SOGNIER, POPE and BEASLEY, JJ., dissent.

CARLEY, Judge, concurring specially.

I agree with the result reached by the majority and in the analysis set forth in the majority opinion. However, I believe it to be fair and just to point out that appellate counsel, who effectively and persuasively presented appellant's case to this court to the greatest extent possible on the existing record, was not the attorney who tried the case below.

I am authorized to state that BANKE, C.J., DEEN, McMURRAY and BIRDSONG, P.JJ., and BENHAM, J., join in this special concurrence.

POPE, Judge, dissenting.

I respectfully dissent. Appellant's first four enumerations of error challenge certain portions of the trial court's charge to the jury. No objections were raised to the charge at trial, but appellant now asserts that the portions of the charge here objected to were harmful as a matter of law. See OCGA § 5-5-24(c). Essentially, appellant asserts that there was no evidence to support these charges. " 'The evidence to authorize a jury instruction need not be substantial or direct; it is enough if there is even slight evidence consisting of inferences drawn from the testimony.' [Cits.]" Bone Constr. Co. v. Lewis, 148 Ga.App. 61, 63, 250 S.E.2d 851 (1978). Applying this standard to the evidence of record on appeal, I am constrained to agree in part with appellant's assertions.

(a) FRAUD. The claimed fraud in this case was the failure of appellant to disclose to appellee Louise McPherson, an experienced horsewoman who was purchasing the 6-year-old stallion, that the horse was vicious and dangerous because he had a history of attacking and biting people. Appellant's first enumeration assigns error to the trial court's jury instructions on actual and constructive fraud as well as the instructions on wilful misrepresentation of a material fact.

Construed in the most favorable light to support the charges and verdict, the evidence shows that prior to the incidents which injured appellees (after the horse had been transported to McPherson's stable the day after the purchase), there were three instances where this stallion had attacked and bitten or attempted to bite people. A former owner of the horse testified that when he bought the horse from appellant in December 1980 through appellant's business partner at whose farm in Pennsylvania the horse was then kept, the horse reacted to the whip (apparently without its even touching him) and ran into the owner's son, knocking him down and biting him on the chest; however, medical attention was not required. This occurred two or three weeks after he had purchased the horse. On another day a short time later the horse tried to bite another son who had gotten the whip in preparation to ride, but the attempted bite did not break any flesh due to the winter jacket the son was wearing at the time. In addition to the owner, others in the family had ridden the horse without incident. However, because the new owner was getting older and had suffered a heart attack several years previously, he called appellant's partner and returned the horse for a refund, explaining that the stallion was too much for him and had a "couple of bad habits, or at least a bad habit, and I thought it would be best if they would take him back." He also testified that "many" stallions will nip you but this stallion's reaction to the sight of the whip was "uncommon." Appellant testified that he was not sure that he was aware of these biting incidents at the time he sold the horse to McPherson. The third incident was a nip or bite on the arm of appellant's wife, of which McPherson was informed during a conversation with appellant and his wife shortly after McPherson had bought the horse at auction. McPherson testified that appellant's wife told her that "it was just a little nip that didn't amount to anything" because the horse had been in the "turnaround" exercise area all day and could see the mares. At trial appellant's wife testified that she cautioned McPherson to keep her other horses out of the sight...