Brewer v. Gittings

• Decision Date: 12 September 1960
• Docket Number: No. 38404,No. 1,38404,1
• Citation: Brewer v. Gittings, 116 S.E.2d 500, 102 Ga.App. 367 (Ga. App. 1960)
• Parties: Mark BREWER, by next friend, v. J. L. GITTINGS
• Court: Georgia Court of Appeals

Page 500

116 S.E.2d 500

102 Ga.App. 367

Mark BREWER, by next friend, v. J. L. GITTINGS.

No. 38404.

Court of Appeals of Georgia, Division No. 1.

Sept. 12. 1960.

Syllabus by the Court

1. Under the facts of this case, the diminutive damages of $10 awarded the plaintiff by the jury justifies the inference of gross mistake or undue bias, within the meaning of Code § 105-2015. The gross inadequacy of the verdict requires the reversal of the trial court's judgment in overruling the plaintiff's motion for a new trial.

2. Under proper instructions of the court, a jury issue is presented as to whether or not a child seven years of age can be guilty of negligence or contributory negligence.

3. Due care in a child of tender years is such care as his capacity, mental and physical, fits him for exercising in the actual circumstances in the particular occasion and situation under investigation.

4. There is no presumption of law that a child between the ages of seven and fourteen did or did not exercise due care, or does or does not have sufficient capacity to recognize danger or to observe due care.

5. In view of 2 above, a child seven years and almost four months of age can be guilty of contributory negligence. The question presents a matter under proper instructions for the jury to determine.

6. Where, under the pleadings and the evidence, the issue of accident is fairly raised, it is not error for the court to instruct the jury as to the meaning in law of the term 'accident.'

7. It is not error for a trial court to charge, 'Now, as I charged you, the defendant is required to exercise ordinary diligence, and all that is required of plaintiff is ordinary diligence, or due care,' where the trial court in its charge also instructs the jury in the substance of Code § 105-204 as to what constitutes due care in a child.

The plaintiff in this case brought an action in tort for personal injuries sustained as a result of his being struck by the defendant's car. A suit was filed by the father for the loss of services of the child and the reasonable medical expenses. While the father's suit is not before the court on appeal, since the cases were tried together on motion of counsel for the defendant in error, consented to and joined in by counsel for the plaintiff in error, the father's suit was made a part of the record in this appeal.

At the time of the occurrence the plaintiff was a pedestrian crossing the street immediately adjacent to the school grounds at 8:15 A.M. on a school day. The defendant's automobile knocked the plaintiff to the ground, inflicting serious injuries which were described by the attending physician as a severe laceration of the scalp down to the skull, extending almost the entire length of his scalp, with the scalp peeled down to the margin of his ear. Immediately after his injury he had difficulty with his breathing and was in a state of shock. The physician further found that he had a skull fracture in the front parietal region, two fractured ribs, and a pneumothorax, which was not a completely collapsed lung but was a partial pneumothorax. He was treated by the attending physician for some weeks, and has permanent scars. The doctor further testified that he would be more susceptible to pleurisy because of the injured pleura. Permanent injuries indicated by the doctor are the scar and possible baldness around it, and the ribs which were fractured will have some 'callous thrown out and going to have a little swelling.' The physician also testified as to the nervousness of the plaintiff, and there is some testimony in the record that he has some symptoms of personality changes. The plaintiff's testimony indicates that he becomes sick now from riding in cars.

The result of the trial in the court below was that the jury returned a verdict for the plaintiff in each of the two cases, which were tried together. The jury found for the minor plaintiff in the sum of $10, and in favor of the father in his suit for $638.55. The defendant filed a motion for a new trial on the general grounds, which was later amended to add special grounds 5 through 12. The trial court overruled the plaintiff's motion for new trial, to which the plaintiff duly excepted.

E. J. Clower, Rome, for plaintiff in error.

Wright, Rogers, Magruder & Hoyt, Wade C. Hoyt, Jr., Rome, for defendant in error.

BELL, Judge.

1. Special ground 5 of the motion for new trial contends that the verdict in favor of the plaintiff's child in the sum of $10 is so grossly inadequate as to justify the inference of gross mistake, undue bias, and prejudice on the part of the jury.

Code § 105-2015 provides, 'The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.' In this case the plaintiff's injuries were severe and undoubtedly painful. There is some indication of permanent impairment. If there is any liability to the plaintiff who has sustained a skull fracture, two fractured ribs, and a partial pneumothorax, or partially collapsed lung, plus scars and baldness around the scars and swelling of the broken ribs, the liability in all conscience must be for some amount greater than $10. The jury by its verdict has found that the defendant is legally liable to the plaintiff in tort, and since this has been established, the diminutive damages awarded justify the inference of gross mistake or undue bias within the meaning of Code § 105-2015. Thus, where the verdict establishes liability and the proof shows actual damages where the medical expenses, etc., amounted to $107, a verdict for $1 was held grossly inadequate and contrary to the law and evidence. Travers v. Macon Ry. & Light Co., 19 Ga.App. 15, 90 S.E. 732. In that case it was held that a new trial should have been granted. In a later case a verdict for $100 in the plaintiff's favor was held to be so small as to require the granting of a new trial. Anglin v. City of Columbus, 128 Ga. 469, 57 S.E. 780. The language used in the Anglin case by Mr. Justice Atkinson, 128 Ga. at pages 472-473, 57 S.E. at page 781, is quite appropriate to the case at hand:

'The only other question, therefore, with which we [etc.] are to deal, is as to whether the amount fixed by the jury was so small and disproportionate to the pain and suffering endured from the injury as to justify the inference of gross mistake or undue bias. Under the evidence disclosed by the record, if the plaintiff was entitled to recover anything, she was entitled to recover damages commensurate with the injury sustained. One hundred dollars was the amount fixed by the jury, which we think is no compensation whatever for the pain and suffering already endured * * * It was insisted by counsel for the defendant in error that the verdict for this insignificant sum should be interpreted as a finding in favor of the city upon its contention that the city was not negligent, and that the pittance allowed by the jury was a matter of mere gratuity. We cannot construe the verdict in that way. A verdict for the plaintiff could not have been lawfully had against the defendant upon any theory except that of the negligence of the defendant, described in the pleadings; and when the jury expressly found against the defendant the verdict must be construed according to its recitals. The jury must be taken at its word, when by the effect of its verdict it finds that the city was negligent. * * * We are constrained, therefore, to hold that, in view of the evidence and the nature of the injury complained of, and the small amount of the verdict, there was an abuse of discretion in not granting the plaintiff's motion for new trial. The evidence as to the defendant's negligence was of such character as to have authorized a finding in favor of either party. If the jury did not believe that the city was negligent, they should have returned a verdict in favor of the defendant; but if, on the other hand, they believed from the evidence that the city was negligent, and that its negligence resulted in the injury as set forth in the plaintiff's declaration, they should have found a verdict for the plaintiff for such an amount as would be fairly compensatory for the injury sustained.'

We think the same reasoning applies to this case, and that the jury, having found the defendant was liable to the plaintiff for his negligence, has rendered a grossly inadequate verdict, and because of this, the trial court should have granted the plaintiff's motion for a new trial. See also the following cases on inadequacy of the verdicts: Potter v. Swindle, 77 Ga. 419, 3 S.E. 94, and Moore v. Sears, Roebuck & Co., 48 Ga.App. 185, 172 S.E. 680.

Special ground 6 was abandoned and, therefore, is not considered.

2. Special ground 7 of the amended motion assigns error in that the court did not charge the following written request: 'I charge you, gentlemen, that the courts of this state have held that a child of the tender age of seven cannot be guilty of negligence so as to bar himself from recovering damages for injuries sustained on account of the negligence of others.' The record discloses that the father's testimony shows the child was born on December 8, and was thus four days short of being seven years and four months old on the day of his injury. Code Ann. § 105-204 defines due care in a child as such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation. In interpreting this section, the courts have held that children below the age of six years are not chargeable with negligence. Christian v. Smith, 78 Ga.App. 603, 51 S.E.2d 857; Red Top Cab Co. v. Cochran, 100 Ga.App 707(2), 112 S.E.2d 229. On the other hand, a child seven and a half years of age has been held to be capable of contributory negligence. 'It was for the jury to determine whether this...