Denton v. Con-Way Southern Exp., Inc.

• Citation: 261 Ga. 41,402 S.E.2d 269
• Decision Date: 15 March 1991
• Docket Number: S90A1245,CON-WAY,Nos. S90A1101,s. S90A1101
• Parties: , 59 USLW 2619 DENTON v.SOUTHERN EXPRESS, INC. et al. GEORGIA POWER COMPANY v. FALAGAN et al.
• Court: Supreme Court of Georgia

Page 269

402 S.E.2d 269

261 Ga. 41, 59 USLW 2619

DENTON v. CON-WAY SOUTHERN EXPRESS, INC. et al.

GEORGIA POWER COMPANY v. FALAGAN et al.

Nos. S90A1101, S90A1245.

Supreme Court of Georgia.

March 15, 1991.

Reconsideration Denied March 27, 1991.

Hubert E. Hamilton, III, Lindsay H. Bennett, Jr., Bennett & Hamilton, Rossville, for Denton.

D. Gary Lovell, Jr., Thomas S. Carlock, Webb, Carlock, Copeland, Semler & Stair Harold N. Hill, Jr., Hurt-Richardson, Atlanta, for Con-Way Exp., Inc., et al.

Richard L. Greene, Medical Association of Georgia, Harold N. Hill, Jr., Hurt-Richardson, Atlanta.

G. Conley Ingram, Dow N. Kirkpatrick, Alston & Bird, Harmon, Owen, Saunders & Sweeney, David C. Will, H. Andrew Owen, Atlanta, for amicus curiae appellee in No. S90A1101.

H. Jerome Strickland, H.J. Strickland, Jr., Jones, Cork & Miller, Macon, for Georgia Power Co.

G. Lee Dickens, Jr., Dickens, Mangum, Burns & Moore, Milledgeville, Eugene Brooks, Middleton & Anderson, P.C., Savannah, Thomas S. Carlock, Webb, Carlock, Copeland, Semler & Stair, Atlanta, for Falagan.

D. Gary Lovell, Jr., Webb, Carlock, Semler & Stair Atlanta, Hardy Gregory, Jr., Davis, Gregory & Christy, Cordele.

R. Clay Porter, Dennis, Corry, Porter, Thornton, et al., Craig P. Siegenthaler, Atlanta, for amicus curiae appellee in No. S90A1245.

SMITH, Presiding Justice.

We consolidated these appeals because they represent challenges to the constitutionality of OCGA § 51-12-1. ¹ For the reasons which follow, we hold that subsection (b) of OCGA § 51-12-1 is unconstitutional under state constitutional law. We, therefore, reverse case number S90A1101 and affirm case number S90A1245.

Our tort law allows every person to recover the damages that result from torts committed to them. OCGA § 51-1-6; OCGA § 51-1-9. It is generally recognized, as stated in Prosser & Keeton Torts 5th ed., § 4 at p. 25, that

[t]he "prophylactic" factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer. When the decisions of the courts become known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of the harm.

Among the damages that can be recovered are general (those that the law presumes flows from the tortious act; they may be recovered without proof of any amount), OCGA § 51-12-2(a), and special (those that actually flow from a tortious act; they must be proved in order to be recovered), OCGA § 51-12-2(b). Proof of special damages, such as the cost of medical care can provide a jury " 'with an important measure for assessing the plaintiff's general damages....' Helfend v. Southern Cal. Rapid Transit Dist., 2 Cal.3d 1, 11 (84 Cal.Rptr. 173)[,]" Bennett v. Haley, 132 Ga.App. 512, 525, 208 S.E.2d 302 (1974), and in "all cases, necessary expenses consequent upon an injury are a legitimate item in the estimate of damages." OCGA § 51-12-7.

Our courts have consistently held that neither the wealth of the plaintiff nor the defendant is relevant. " '[A] man's treatment before the bar of Justice should not vary with his financial condition....' " Garrett v. State, 125 Ga.App. 743, 744, 188 S.E.2d 920 (1972). Because of its irrelevance and prejudicial value, our courts have also held that a litigant's insurance policy is not only inadmissible, it can be the ground for a mistrial. City Council of Augusta v. Lee, 153 Ga.App. 94, 99, 264 S.E.2d 683 (1980). Such evidence is highly prejudicial and it can influence the entire case, no matter which side attempts to introduce it. ² As stated in Bennett v. Haley, 132 Ga.App., supra at 524-24, 208 S.E.2d 302:

"[E]vidence of collateral benefits is readily subject to misuse by a jury. (Cit.) It has long been recognized that evidence showing the defendant is insured creates a substantial likelihood of misuse. Similarly, we must recognize that petitioner's receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact." Eichel v. New York Central R. Co., 375 U.S. 253, 255, 84 S.Ct. 316, 317, 11 L.Ed.2d 307.

Over 100 years ago this Court illustrated the infectiously prejudicial effect of admitting collateral sources. The Court rejected a railroad's argument that the decedent's life insurance policy should be allowed to reduce the amount it owed the widow for the wrongful death of her husband in The Western and Atlantic Railroad v. Meigs, 74 Ga. 857, 868 (1885), and stated:

If her recovery could thus be reduced, it might be insisted that, where the husband's life was insured for more than she was allowed to recover under the law as its actual cash value, the company could claim a balance against the family of the deceased, on the idea that the killing of the husband and father was a positive pecuniary benefit to them.

Our Courts have adhered to the principle that evidence of collateral sources is inherently prejudicial because its infectious nature tends to contaminate the entire trial. Collins v. Davis, 186 Ga.App. 192, 193, 366 S.E.2d 769 (1988) (does not matter whose insurance coverage is admitted, it is prejudicial because its effect is not self-limiting, but flows over into other considerations); Moore v. Price, 158 Ga.App. 566, 567, 281 S.E.2d 269 (1981) (admission of the existence of insurance policy grounds for a mistrial). See Cincinnati, N.O., etc., R. Co. v. Hilley, 121 Ga.App. 196, 200, 173 S.E.2d 242 (1970), for the "Collateral Source Rule" and cases in which it has been applied.

We now turn our attention to the Georgia Constitution. All government originates with the people and is founded only upon their will, and solely for the good of the whole. Art. I, Sec. II, Par. I of the Constitution of Georgia of 1983. The Georgia Constitution represents the will of the people, and legislative acts that violate the Constitution are void and it is our duty to declare them void. Art. I, Sec. II, Par. V of the Constitution of Georgia of 1983. The Constitution of Georgia of 1976, within the Bill of Rights provided: "Protection to person and property is the paramount duty of government and shall be impartial and complete." The Constitution was amended, and a new sentence (below in bold) was added. The provision now proclaims: "Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws." Art. I, Sec. I, Par. II of the Constitution of the State of Georgia of 1983. ³ Appellant Georgia Power argues that the second sentence added to the Bill of Rights merely conformed the constitutional provision to this Court's interpretation of the first sentence. In Georgia Railroad Co. v. Wright, 125 Ga. 589, 601, 54 S.E. 52 (1906), rev'd on other grounds 207 U.S. 127, 28 S.Ct. 47, 52 L.Ed. 134, this Court held that the first sentence "states in other language the same principle laid down in the [C]onstitution of the United States when that instrument declares that no State shall deny to any person the equal protection of the laws." However, our rules of constitutional construction lead us to a different conclusion. As this Court stated in Thompson v. Talmadge, 201 Ga. 867, 885, 41 S.E.2d 883 (1947);

"It is an established rule of construction that, where a constitutional provision has received a settled judicial construction, and is afterwards incorporated into a new or revised constitution, or amendment, it will be presumed to have been retained with a knowledge of the previous construction, and courts will feel bound to adhere to it...."

Additionally as this Court announced in Wellborn v. Estes, 70 Ga. 390, 397, 403 (1883):

The object of construction, as applied to a written constitution, is to give effect to the intention of the people in adopting it.... [I]t is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law....

[T]he people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated....

[F]or, we repeat that it is scarcely conceivable that a case can arise where a court would be justifiable in declaring any portion of a written constitution nugatory ... or so treating it as to render any word there "inoperative," or "idle" or "nugatory."

If the first and second sentence of Art. I, Sec. I, Par. II of the Constitution of the State of Georgia of 1983 merely express the same right, then the first sentence becomes "inoperative," "idle," and "nugatory." We refuse to obliterate an entire sentence in our Bill of Rights.

The Georgia Constitution offers Georgia citizens greater rights and more benefits than the Federal Constitution. Colonial Pipeline v. Brown, 258 Ga. 115, 118, 365 S.E.2d 827 (1988) (reversed punitive damage award under the excessive fines clause of the Ga. Constitution, Art. I, Sec. I, Par. XVII); State v. Thornton, 253 Ga. 524, 528, 322 S.E.2d 711 (1984) (Smith, J. dissenting); LoGiudice v. State, 251 Ga. 711, 715, fn. 6, 309 S.E.2d 355 (1983) (Smith, J. dissenting.); and Green v. State, 260 Ga. 625, 627, 398 S.E.2d 360 (1990). The difference in the Georgia Constitution and the Federal Constitution was recognized by Justice Weltner in his dissent in Poulos v. McMahan, 250 Ga. 354, 365, 297 S.E.2d 451 (1982), when he stated:

While the majority opinion presents a thoughtful analysis of the treatment of this issue by the United States Supreme Court, we need look no further than our own Constitution.

. . . . .

The statute violates the constitutional requirement of impartial and complete protection to person and property.

"Legislative acts in violation of this Constitution.... are void, and the Judiciary shall so declare them." [Cit.]

The Georgia Constitution requires statutes to be "impartial and complete." ⁴ The amended code sectio...