Burnett v. Doster
| Decision Date | 04 January 1978 |
| Docket Number | No. 2,No. 54611,54611,2 |
| Parties | Lonnie BURNETT et al. v. Norman DOSTER |
| Court | Georgia Court of Appeals |
Benjamin Zeesman, Cordele, for appellants.
Jay, Garden, Sherrell & Smith, Clayton Jay, Jr., Fitzgerald, for appellee.
Lonnie Burnett brought suit against Norman Doster to recover for injuries and medical expenses sustained in an automobile accident allegedly caused by the negligence of Doster's minor daughter. He also sought to recover for his pain and suffering, for the loss of past and future earnings, and for punitive and exemplary damages. Mrs. Mildred Burnett sued Doster to recover for loss of consortium. Doster filed a counterclaim against Lonnie Burnett.
The cases were consolidated for trial, and the jury returned a verdict of $5,000 for Lonnie Burnett, but returned a verdict for Doster on Mildred Burnett's suit. In this consolidated appeal, appellant Lonnie Burnett contends that the verdict rendered in his favor was inadequate as a matter of law; appellant Mildred Burnett claims the verdict for the appellee, Doster, on her companion suit was inconsistent with the verdict allowing recovery for her husband. Both appellants claim that the judgments should be reversed because of numerous errors committed at trial.
1. The evidence at trial showed that appellant Lonnie Burnett is disabled. However, medical testimony was given which tended to prove that much of his disability was due to a pre-existing medical condition and that he was not disabled solely as a result of his accidental injuries. The appellee also introduced evidence that appellant Lonnie Burnett negligently failed to give a left turn signal and that this omission was the primary cause of the accident. Thus, the evidence authorized the jury's award of an amount less than the total amount sought. Furthermore, there is no evidence to support an inference of gross mistake or undue bias on behalf of the jury in rendering its verdict. See Barnes v. Cornett, 134 Ga.App. 120(3), 213 S.E.2d 703 (1975).
The trial judge did not err in refusing to grant appellant Lonnie Burnett's motion for new trial on either the general grounds or on the ground that the verdict was inadequate.
2. In her amended motion for new trial, appellant Mildred Burnett argued that since her husband was entitled to recover "so was she for (the) loss of her husband's services and in view of his severe injuries and suffering." It is the established law of this state that loss of a husband's services is not a proper element in a wife's suit for loss of consortium. See Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga.App. 519, 77 S.E.2d 24 (1953); Pinkerton National Detective Agency, Inc. v. Stevens, 108 Ga.App. 159, 132 S.E.2d 119 (1963).
However, appellee's liability was established by the verdict awarding appellant Lonnie Burnett damages for personal injury. On the basis of this verdict appellant Mrs. Burnett would be entitled to a new trial on the issue of damages provided her evidence as to loss of consortium was uncontradicted. See Smith v. Tri-State Culvert Mfg. Co., 126 Ga.App. 508, 191 S.E.2d 92 (1972); Clark v. Wright, 137 Ga.App. 720, 224 S.E.2d 825 (1976).
Appellant's counsel has omitted any reference in his brief to evidence in the record establishing proof of appellant's loss. Nevertheless, we have examined the record and found that appellee failed to refute appellant's evidence as to her loss of consortium. We find, therefore, that appellant Mildred Burnett is entitled to a retrial on the issue of damages since appellee's liability was established by the original verdict for her husband.
The appellant also sued to recover for wages she lost as a result of having to stop work to care for her injured husband. The trial judge did not instruct the jury that they could award plaintiff damages on this theory, and appellants' counsel did not object to this omission. Without rendering any comment on the validity of such cause of action, we find that the failure to object at trial precludes review of the trial court's failure to charge on this issue.
3. (a) Appellants allege the trial judge erred in refusing to permit various portions of a medical witness' deposition be admitted into evidence. There is no official record or stipulation of proceedings covering this conference. Consequently, we are unable to review this enumeration of error.
(b) The appellants allege that the trial judge erred in refusing to instruct the jury that a state patrolman's report of the collision was not in evidence. There is no indication that appellants' counsel objected to the trial judge's failure to give such a charge; nor is a request to charge on this issue included in the record. Accordingly, we are unable to review this enumeration of error. See Durrett v. Farrar, 130 Ga.App. 298(8), 203 S.E.2d 265 (1973); Atlanta & West Point R. R. Co. v. Armstrong, 138 Ga.App. 577, 227 S.E.2d 71 (1976); Code Ann. § 70-207(a)(b).
( c) The appellants contend that the trial judge erred in holding the jury too late into the evening for deliberation and in requiring them to resume deliberations early the next morning and in not declaring a mistrial. No motion for mistrial was ever made. Furthermore, we find no abuse of discretion by the trial judge. He checked with the jury on several occasions as to the status of their deliberations, dismissing them for the evening when it became apparent that a verdict was not imminent. See Amer. Family Life Assur. Co. v. Welch, 120 Ga.App. 334(3), 170 S.E.2d 703 (1969).
( d) The appellants enumerate as error the fact that the jurors were allowed to have drink other than water, notwithstanding the bailiff's receiving the oath prescribed by Code § 59-717. They rely on the bailiff's affidavit that the sheriff and his deputies served coffee and soft drinks to the jurors in the courthouse basement without the permission of the trial judge.
It is neither "apparent (n)or probable" that the appellants in this civil suit were prejudiced by the jurors' drinking coffee or soft drinks instead of water. See Emory Univ. v. Lee, 97 Ga.App. 680(2), 104 S.E.2d 234 (1958). We agree with the trial judge that this irregularity did not require a new trial. See Post-Tensioned Construction, Inc. v. VSL Corp., 143 Ga.App. 148(2), 237 S.E.2d 618 (1977).
( e) We are unable to consider the appellants' objections to the charges given to the jury before beginning their deliberations since counsel raised no objection to the charges before the...
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