Draper Canning Co. v. Dempsey, 35564
| Decision Date | 18 February 1955 |
| Docket Number | No. 2,No. 35564,35564,2 |
| Citation | 86 S.E.2d 678,91 Ga.App. 593 |
| Parties | DRAPER CANNING COMPANY v. V. Q. DEMPSEY |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. (a) The plaintiff in attachment may as a matter of right, under § 8-610 of our Code, amend his attachment as in other cases at common law.
(b) Under the provisions of § 8-111 of our Code, where a plaintiff commences an action in attachment, he shall give bond with good security in an amount at least double that debt sworn to, payable to the defendant in attachment, conditioned to pay such defendant all damages that he may sustain and also all costs that may be incurred by him in suing out such attachment in the event the plaintiff shall fail to recover in the case, but the amount of the bond required shall in no event exceed the sum of $20,000.
2. The special ground of the amended motion for new trial contending that the verdict is grossly excessive is without merit, since it is not made to appear that the amount was in any way the result of prejudice, bias, or mistake. On the other hand, the evidence amply authorized the verdict as fixed by the jury.
3. Grounds 6 through 10 of the amended motion for new trial, contending that the trial judge erred in his charge in certain respects and in his failure to charge in other respects, are not meritorious for reasons assigned in the corresponding division of the opinion.
4. The general grounds of the motion for new trial are expressly abandoned.
An attachment was levied by Virgil Q. Dempsey in the Superior Court of Bartow County against property of the nonresident defendant, Draper Canning Company. The attachment was subsequently amended, and the plaintiff filed a declaration, in which he sought damages for personal injuries, loss of services of his wife and minor son and daughter, medical expenses and injury to personal property, resulting from a collision between the automobile in which he and his family were riding and a tractor-trailer unit belonging to the defendant. Demurrers were filed and overruled, and the defendant answered, denying liability. Upon the trial of the case the jury returned a verdict for the plaintiff in the sum of $20,000. The defendant filed a motion for new trial on the general grounds, which was subsequently amended by the addition of six special grounds. Error is assigned on the denial of this motion, and on certain rulings on demurrer.
Nall, Sterne, Miller, Cadenhead & Dennis, Atlanta, for plaintiff in error.
Davis & Cullens, Cartersville, for defendant in error.
1. Grounds 2 and 4 of the demurrer are insisted upon, and contend that the plaintiff cannot recover more than $10,000 in damages, and that the amount claimed as damages ($50,000) is in excess of the amount claimed in the affidavit forming the basis for the issuance of the attachment.
The affidavit in attachment was amended by striking the original sum named as damages, which was $10,000, and substituting $50,000, the amount sued for in the declaration. The original bond was in the sum of $20,000, the maximum bond required under Code, § 8-111, and accordingly was not amended. Amendments to affidavits in attachment are permissible under Code, § 8-610, and this section was applied to allow material amendments in Guckenheimer & Son v. Day & Hague, 74 Ga. 1(2-6); Fine v. Frankel Clothing Co., 22 Ga.App. 404, 95 S.E. 1017, and Peyton v. Peyton, 31 Ga.App. 470, 120 S.E. 689, among other cases. Casey & Hedges Mfg. Co. v. Dalton Ice Co., 94 Ga. 407(3), 20 S.E. 333, and other cases relied on by the plaintiff in error have no application here, as they relate to situations where there was no amendment to the affidavit in attachment. These grounds of demurrer are without merit.
2. It is contended in special ground 5 of the amended motion for new trial that the verdict of $20,000 is grossly excessive. In this regard, the evidence for the plaintiff authorized the following findings: property damage to the automobile was $315. Medical expenses to the time of trial were $280.50. The plaintiff sustained injuries to his knees, back, and head as well as other bruises, with corresponding pain and suffering. There was some evidence that the damage done his knee was permanent, and it was proved that due to this injury he could no longer perform his civil-service job as stokerman, which would within five years have put him under a pay schedule of $286 per month; and he was transferred to a job as oilerman carrying a maximum pay schedule of $265 per month, so that the difference in pay under these maximum rates would represent a loss of $252 per year (although the transfer resulted in a small actual increase in pay until the length of service would authorize pay schedules in the higher brackets). The jury was authorized to find: That the plaintiff's daughter received a hernia as a result of the collision, resulting in loss of her services to the plaintiff, and that an operation was indicated to correct this condition, which would cost $350. This child was 16 years of age. The son, 10 years of age, received injuries to four front teeth; it was very likely these teeth would be lost by abscesses; that the treatment might involve a period of 7 or 8 years with numerous trips to the dentist, involving crowns and bridges, yearly X-rays and so on, at an expense of up to $500. The plaintiff's wife received injuries to her head, arms, shoulder, hand, and ankles, spent 7 weeks in a cast, had to be taken daily by her husband for electric-therapy treatment for a period of 12 or 13 weeks, and may need further treatment of this kind. As a result of her injuries, she cannot dress or bathe herself or do anything with her right hand and cannot perform her usual services in cooking, keeping house and so on. There will be permanent injury to her wrist, fingers, and forearm. Her husband will have the burden of seeing that she gets necessary medical attention and of transporting her, as well as the son and daughter, to various places for that purpose, and he has been deprived of her services, companionship, and consortium since the collision, and will continue to suffer this loss.
Reviewing courts will not consider an assignment of error upon a verdict on the ground that it is excessive unless it is made to appear that it was due to prejudice, bias, or mistake. Knight v. Northey, 21 Ga.App. 46(1-a), 93 S.E. 535; Lamb v. Davis, 20 Ga.App. 240, 92 S.E. 1009. There is no such showing here. However, in view of the evidence of the plaintiff's own injuries and loss of earning capacity, pain and suffering, and the permanent loss of his wife's services, together with evidence of the burden which has been placed upon him up to the trial, and which will continue for years to come, of providing medical attention for the members of his family, transporting them at regular intervals, in some cases daily, for long distances so that they can receive the proper treatment, and providing for the services of himself or some other person to assist his wife in almost every activity, it would seem that the verdict here was no more than adequate, and fully warranted under the evidence. This ground is without merit.
3. Special grounds 6 through 10 will be treated under this general division of the opinion, since they contend that the trial judge erred in his charge in certain respects and in his failure to charge in other respects, as will hereinafter more fully appear. Among other things, he charged as follows:
In special ground 6 it is contended that this charge constitutes reversible error because, it is contended, the charge authorizes the jury to return a verdict for damages to be allowed for diminution of future earnings, it being contended further that there is no evidence which would authorize such recovery. Special ground 8 complains that the trial court erred in failing, in connection with the foregoing charge or elsewhere, to call to the attention of the jury that in the plaintiff's declining years there might be a decrease in his capacity to labor and in his ability to earn money, and that this also should be taken into...
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