Brown v. Serv. Coach Lines Inc

• Decision Date: 27 June 1944
• Docket Number: No. 30322.,30322.
• Citation: 31 S.E.2d 236
• Parties: BROWN. v. SERVICE COACH LINES, Inc.
• Court: Georgia Court of Appeals

31 S.E.2d 236

BROWN.

v.SERVICE COACH LINES, Inc.

No. 30322.

Court of Appeals of Georgia,

Division No. 1.

June 27, 1944.

Rehearing Denied July 24, 1944.

Syllabus by the Court.

1. "Before a verdict becomes final it should, where the losing party requires it by a motion for a new trial, receive the approval of the mind and conscience of the trial judge. He is sometimes spoken of as the thirteenth juror. Until his approval is given, the verdict does not become binding, in a case where a motion for a new trial contains the general grounds."

2. "In interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary."

3. There is nothing in the order overruling the motion for a new trial to indicate that the judge was dissatisfied with the verdict on the discretionary grounds, but on the contrary, in overruling the motion on all the grounds and refusing a new trial on all of them, his approval is indicated. The trial judge is presumed to have known, and we think knew, his obligation was to exercise his legal discretion and that in overruling the motion he did exercise this discretion.

4. Where the trial judge refuses to order a new trial on the general grounds in a damage case, this court will interfere with that discretion only in case of manifest abuse.

5. "Substantial damages is a sum, assessed by way of damages, which is worth having; opposed to nominal damages, which are assessed to satisfy a bare legal right."

6. The amount of damages found here being substantial, we cannot say that the trial judge abused his discretion, when in overruling the motion for a new trial, he in effect, said that the damages, as shown by the verdict, were not so small as to justify the inference of gross mistake or undue bias.

7. The charge of the court substantially embraces the rules of law on the measurement of damages, as applied to the pleading and the evidence. The matters alleged to have been erroneously omitted from the charge were elaborations of the instructions actually given; and in the absence of an appropriate request the plaintiff cannot now complain.

8. The plaintiff recovered a verdict of $900 as damages for injuries. She complained that this recovery was inadequate. The alleged errors in the charge, and the admission of the testimony complained of in the nine grounds of the motion for a new trial referred to in the last division of this opinion, concern solely her right to recover, and have no bearing on or relation to the amount of damages which the plaintiff should recover. Such errors, if any, are necessarily harmless, and as the case is being affirmed, it is unnecessary to discuss them.

Error from Superior Court, Wilkinson County; George S. Carpenter, Judge.

Action by Alice Brown against the Service Coach Lines, Inc., for personal injuries sustained while a passenger on defendant's bus. Judgment overruling plaintiff's mo-tion for a new trial after a jury's verdict in her favor for an unsatisfactory amount, and she brings error.

Affirmed.

E. W. Maynard and S. G. Jones, both of Macon, G. Seals Aiken, of Atlanta, and A. S. Boone, of Irwinton, for plaintiff in error.

Martin, Martin & Snow, of Macon, and Victor Davidson, of Irwinton, for defendant in error.

MacINTYRE, Judge.

Miss Alice Brown brought an action against Service Coach Lines Inc. for personal injuries sustained while a passenger on one of the defendant's busses. The case proceeded to trial and resulted in a verdict for the plaintiff in the sum of $900. The plaintiff being dissatisfied with the amount of the verdict, contended that it was so small as to justify the inference of gross mistake or undue bias. The order overruling her motion for a new trial was excepted to, and the case was brought to this court for review. The evidence, as it relates to the amount of damages that the plaintiff should recover, and, when considered in the light most favorable to upholding the verdict, was substantially as follows: Dr. Clay, who saw the plaintiff at the hospital immediately after the accident and daily during the two weeks she remained in the hospital and frequently thereafter until he dismissed her six months and a day after the accident, testified that "the nature of her injury was a fracture of the left humerus at the junction of the lower and the middle third of the arm; and [that she] also complained of swelling and pain in left leg and knee; she had some abrasions over these areas, but X rays were negative for fracture; had some contusion of left chest. That is the extent. She was in nervous shock when she came in. The contusions and abrasions cleared up in normal course of time. The only trouble she had was with this fracture of the left humerus. By the humerus I mean the arm between the elbow and the shoulder. The junction of the lower and middle third is where the fracture was. * * * The X ray after the fracture was reduced showed the bone to be in good position. Then she was examined at intervals during the time she was in the hospital here, and after she left, under the fluoroscope and X rays made at various times to check up on our healing. The splints were removed on March 11th about two months [after the accident]. I saw her after the splints were removed very often, every two or three weeks. The last time I saw her was on July 11, 1942, 12 months after the accident. On July 11, 1942, I made a careful examination of her arm, and she had perfect results with the arm. However, there was a little shortening of the arm, which you would expect in a fracture of that kind. However, the shortening does not interfere with the function of the arm. * * * By July 11 she could use her wrist and her elbow and arm as well as she could prior to the injury * * *. I do not think, as far as impairment is concerned, that it is a permanent deformity and no permanent disability." (Brackets ours.) Dr. Weir, a witness for the plaintiff, examined the plaintiff shortly before the trial on July 5, 1943, testified that the broken arm was about 1 1/2 inches shorter than the other one, and that there was a bow in the elbow of the arm. "I think the union in that fracture is perfect. The bone is not completely straight, but the union is as firm as ever * * * I think the bow of the left arm is a little perceptible. She has just as efficient use of that arm as the other." Dr. Dupree, a Wilkinson County physician, who made X rays on Sunday, the day before the trial, a witness for the plaintiff, testified: "I have made an examination of her recently--yesterday. I made an X ray picture of it. * * * Turn it edgeways and this is what we call the anterior posterior, made from the bone toward the back, shows the curvature of the bone, with a spur bone here which was broken off at the time of the injury. That was never healed back. Instead of this bone healing in direct alignment for some reason nature saw fit to build another bone around it, leaving that spur of the original bone still in her arm. * * * As to indicating that there is a crook in the joint, the only way that the crook in the joint would be, that bone being drawn out of line, * * *. It is shown angular where these two bones here dip opposite each other like that, half of the bone being broken, it angulates, and that throws the axle of the joint out of line. Naturally, nature will have a tendency, or at least will attempt to lengthen this bone and shorten that one so as to throw the joint back into line, but it has not done such an excellent job. There is some crook. * * * Of course this other bone is evidently fragmented, but for some reason instead of this bone healing along the line of this spur in a straight positionit built a new bone around it. The building of this new bone would make a bulge up there. I think that is a permanent injury. I would say that bone is likely to remain unless it is operated on, or something done to it, and I do not know whether that would benefit it or not. * * * I would say that the bone had reached its maximum improvement. It has been about 18 months since it happened. * * * You see that would be right about the fracture, right along here, near to her shoulder, near the middle of the lower third. I think that is such a permanent injury that it will affect her during her life, that arm will. She may become dexterous with that arm where she could do most anything she could do with the other one, provided it is used for a short period of time, but an arm in that position would naturally tire quicker because it is working at a disadvantage. * * * The result of that bone like it is will evidently cause discomfort or pain, especially if used a great deal. * * * Doctor Clay got a splendid union of the kind it is. The shortening is not responsible for the impairment of the use of the arm--it is the manner in which it unites-- out of line. I have examined the arm under a fluoroscope." The plaintiff testified, in part, that shortly before the trial her lawyer had sent her to see Dr. W. A. Newman, an orthopedic physician in Macon and that he examined her and made X rays of her arm. However, she did not call Dr. Newman as a witness or take his depositions. The plaintiff, immediately prior to the accident, had had temporary work as a stenographer in Macon, receiving $12 per week. She had previously taken a bookkeeping and stenographic course, but had not completed the stenographic part of the course. After she was dismissed by Dr. Clay on July 11, 1942, she did some work around her father's farm, including the driving of a tractor. She then went back to business college for six weeks or two months, and on November 19th, she went to work for the Bibb Manufacturing Company in Macon, as a bookkeeper for $20 per week. Prior to the trial she had been raised to $22 per week, and...