Brock v. Cato

• Decision Date: 28 February 1947
• Docket Number: No. 31504.,31504.
• Citation: 42 S.E.2d 174
• Parties: BROCK et al. v. CATO.
• Court: Georgia Court of Appeals

42 S.E.2d 174

BROCK et al.

v.CATO.

No. 31504.

Court of Appeals of Georgia, Division No. 2.

Feb. 28, 1947.

Rehearing Denied April 1, 1947.

Syllabus by the Court.

1. That portion of the charge complained of in ground 4 of the motion for new trial, when viewed in the light of the charge as a whole, was not erroneous as excluding from the consideration of the jury the questions of whether or not the defendant was negligent, or whether, if negligent, such negligence was the proximate cause of the plaintiff's injuries.

2. The trial court is not required to attempt to explain to the jury the degree of certainty of future pain and suffering necessary to justify the jury in including an award therefor in its verdict, nor does the law furnish any standard for measuring damages for pain and suffering, either past or future, but this is a matter left to the enlightened conscience of an impartial jury.

3. The court did not err in refusing the requested charge as it did not consist of an accurate statement of the law as to the measure of damages.

4. The Emergency Price Control Act of 1942, as amended by the Stabilization Extension Act of 1944, 50 U.S.C.A, Appendix, § 901 et seq, was not intended to limit or control in any way the measure of damages in an action for the tortious injury or destruction of property.

5. The general rule, that this court will not consider assignments of error upon the refusal of the trial court to allow an swers to certain questions propounded by the plaintiff in error to his own witness where the assignment of error does not disclose what answers were expected and that a statement was made to the trial court of the answers expected at the time the questions were posed and excluded, does not apply to an exception taken to the refusal of the trial court to allow answers to be given to certain questions propounded by the plaintiff in error on cross-examination since it can not be expected that counsel could state as fully what reply is anticipated as in the case of witnesses introduced by himself.

6. Since the case must be returned for. a new trial for the reason given in division 5 of this opinion, neither the general grounds nor those special grounds assigning errors which are not likely to occur on a new trial are now considered.

Error from City Court of Hall County; H. R. Edmondson, Judge.

Action by Guy Cato against Glenn Brock, doing business as Northern Freight Lines, and another, for injuries to plaintiff and his property caused by collision of plaintiff's automobile and defendants' truck. To review a judgment for plaintiff, the defendants bring error.

Reversed.

Guy Cato brought an action for damages in the City Court of Hall County against Glenn Brock, doing business as Northern Freight Lines, and the Maryland Casualty Company, as insurance carrier, for injuries to the plaintiff and his property caused by the alleged negligence of the defendant, Brock, in the operation of his motor truck, driven by Brock's agent and employee, J. C. Allen, while within the scope of his duties and employment. The plaintiff alleged that he was entitled to. recover for the destruction of his automobile which prior to the wreck was worth the sum of $1,800, and following the wreck was worth reasonably not more than $500; and to recover for pain and suffering resulting from personal injuries. The total recovery sought was $15,000, but this sum was reduced, by amendment, to $5,000. On the trial of the case the jury returned a ver-dict for the sum of $3,500. Any evidence or other facts pertinent to a determination of the case will be found in the body of the opinion. The defendants filed their motion for new trial on the general grounds and seven special grounds, numbered 4 to 10. The motion for new trial was overruled and the defendants excepted.

Wm. P. Whelchel, of Gainesville, for plaintiffs in error.

Kenyon, Kenyon & Gunter, of Gainesville, for defendant in error.

FELTON, Judge.

1. Ground 4 of the motion for new trial is not meritorious. While it would have been, no doubt, more appropriate and fitting for the court in explaining to the jury for the purpose of the bond which the motor carriers in this State are required to file with the Public Service Commission under Code, § 68-612, to point out in terms of the statute that the bond is filed for the protection of the public against injury "proximately caused by the negligence of such motor common carrier, its servants or agents"; the court at this point was merely explaining the presence of the Maryland Casualty Company in the case, and the charge, taken as a whole, did not tend to confuse the jury or compel a verdict in favor of the plaintiff by reason of this charge's excluding from the consideration of the jury the questions of whether the defendant was negligent or not, or whether if negligent such negligence was the proximate cause of the plaintiff's injuries. The court charged: "Gentlemen, I will charge you that under the laws of Georgia that a motor carrier to operate on the highways of this State, hauling passengers or property for hire, that it is necessary before they operate as such that they qualify with the Public Service Commission to pay any damages to any person or persons that they may cause any damage to on the highway, and in this particular case the plaintiff in the case is covered by that. They have put up that bond of insurance down there and Maryland Casualty Company is surety on the bond, and that is the reason Maryland Casualty Company is shown as a defendant in this case, and in the event you find from the evidence and the laws I will give you in charge that the defendant Glenn Brock, doing business as Northern Freight Lines, is responsible for this damage you will also find a verdict against the defendant Maryland Casualty Company." Elsewhere in the charge the court explained to the jury that in order for the plaintiff to recover the jury would have to find that the defendant was negligent and if negligent, such negligence, in order to make the defendant liable, would have to be one or more of the acts of negligence charged in the petition. In view of that explanation and the language quoted above from the charge where it is said: and "in the event you find from the evidence and the laws I will give you in charge * * * that the defendant * * is responsible for this damage you will also find a verdict against the defendant Maryland Casualty Company, " we think the jury clearly understood that the plaintiff could recover only if the defendants were "responsible, " that is to say liable under the law, for the damage done and they would be liable only if Brock was guilty, under the evidence, of one or more of the acts of negligence charged in the petition and such negligence was the proximate cause of the injury and damage sustained by the plaintiff.

2. The criticism leveled at the charge complained of in ground 5 of the motion for new trial is that as given the charge failed to explain to, elaborate for, or instruct the jury how and in what manner a calculation should be made, based on age, life expectancy and physical condition of the plaintiff, in arriving at a verdict for pain and suffering; and gave no legal basis upon which to arrive at a verdict, which confused and misled the jury. The decisions of this court and of the Supreme Court have firmly established the principle that the trial judge is not required to attempt to explain to the jury the degree of certainty of future pain and suffering necessary to justify the jury in including an award therefor in their verdict; and the decisions have repeatedly held that the law furnishes no standard for measuring damages for pain and suffering, either past or future, but is a matter left to the enlightened conscience of an impartial jury, because it is impossible, mathematically, to computein dollars and cents the amount of pain and suffering endured. Atlanta & W. P. R. Co. v. Johnson, 66 Ga. 259; Jackson v. Merritt Hardware Co., 26 Ga.App. 747, 107 S.E. 394; Louisville & N. R. Co. v. Maffett, 36 Ga.App. 513, 137 S.E. 404; Western & A. R. Co. v. Dobbs, 36 Ga.App. 516, 137 S.E. 407; Georgia Power Co. v. Woodall, 43 Ga.App. 172, 173, 158 S.E. 367; Linder v. Brown, 137 Ga. 352, 73 S.E. 734; Betts Co. v. Hancock, 139 Ga. 198, 77 S.E. 77. In Augusta & S. R. Co. v. Randall, 85 Ga. 297, 11 S.E. 706, 710, which the court held to be a suit for nothing more than for personal injuries and pain and suffering, the trial court charged on the subject of damages that "the law lays down a rule, and it is this: It says, in cases of this kind, damages must be assessed according to the enlightened consciences of impartial jurors." Error was assigned upon that charge because the plaintiffs had not introduced the mortality tables or other...