Brown v. Service Coach Lines

• Citation: 31 S.E.2d 236,71 Ga.App. 437
• Decision Date: 27 June 1944
• Docket Number: 30322.
• Parties: BROWN v. SERVICE COACH LINES, Inc.
• Court: Georgia Court of Appeals

31 S.E.2d 236

71 Ga.App. 437

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. [Copyrighted Material Omitted]

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 position it 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 was to receive another raise on July 19. The mother, father, and several relatives and friends of the plaintiff, as well as the plaintiff herself, testified as to her pain and suffering.

The order overruling the motion for a new trial is as follows:

"1. The action is one to recover damages resulting from personal injuries sustained by the plaintiff while riding as a passenger on a bus of the defendant, operating as a motor common carrier. The jury returned a verdict in favor of the plaintiff for $900, and being dissatisfied with the amount of the verdict, she moves for a new trial. 1. [ Special] Ground one of the motion complains that the damages fixed by the jury are legally inadequate, and are so small as to justify the inference of gross mistake and undue bias or prejudice. (Brackets ours). '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.' Code,§ 105-2015. No negligence on the part of plaintiff was claimed, and the verdict of the jury must be construed as a finding that the defendant was negligent in one or more of the ways set forth in the pleadings. Anglin v. Columbus, 128 Ga. 469, 472, 57 S.E. 780. The jury, having found that the defendant was liable because of negligence, proceeded to assess damages in favor of the plaintiff. In giving consideration to the verdict of a jury it must be borne in mind that 'they are the "chemists" with the right "to examine every molecule of the evidence, and to feel every shock and tremor of its probative force."' Moore v. Sears, Roebuck & Co., 48 Ga.App. 185, 186, 172 S.E. 680, quoting from Vickers v. Atlanta & W. P. R. Co., 64 Ga. 306. In the light of the record we can not say that the jury's verdict was the result of 'gross mistake and undue bias or prejudice,' as alleged in the motion. 'The existence of prejudice or bias cannot rest upon suspicion. That the verdict was the result of prejudice and bias must be shown.' City of Rome v. Davis, 9 Ga.App. 62, 67, 70 S.E. 594, 596, cited in Allyn & Bacon Book Publishing Co. v. Nicholson, 61 Ga.App. 672, 7 S.E.2d 316. The record does not justify the inference that the verdict of the jury was the result of 'gross mistake.' Indeed, 'There is a presumption that the verdict of a jury is based upon a fair consideration of all matters presented to it.' McCullough v. Clark, 88 W.Va. 22, 106 S.E. 61. See Western & Atlantic Railroad v. Mathis, 63 Ga.App. 172, 173, 10 S.E.2d 457, where the principle announced in McCoullough v. Clark, supra, is referred to.

"2. The jury, having found for the plaintiff, the remaining grounds of the motion, alleging error in the charge of the court and in the admission of evidence, must be held harmless. 'Where, in a suit against a...