Gielow v. Strickland, s. 74907
| Decision Date | 04 November 1987 |
| Docket Number | 74908,Nos. 74907,s. 74907 |
| Citation | 185 Ga.App. 85,363 S.E.2d 278 |
| Parties | GIELOW v. STRICKLAND et al. STRICKLAND v. GIELOW. |
| Court | Georgia Court of Appeals |
B. Dean Grindle, Jr., Atlanta, Charles K. Higgins, for appellant.
Joe C. Freeman, Jr., Warner S. Fox, Michael J. Goldman, Atlanta, for appellees.
The plaintiffs' suit against Gielow for the wrongful death of their daughter resulted in a verdict in favor of the plaintiffs for $750,000. In Case No. 74907, Gielow appeals from the judgment entered on that verdict. In Case No. 74908, the plaintiffs cross-appeal from the judgment entered on a verdict awarding them zero damages on their abusive litigation claim.
1. Anticipating that plaintiffs' counsel would argue that the jury should punish the defendant by entering a sizable verdict against him, defense counsel requested that the trial court forbid such an argument. The trial judge ruled that it would not charge the jury on the penal nature of wrongful death actions, but permitted plaintiffs' counsel to argue that point.
Plaintiffs point to Reliance Ins. Co. v. Bridges, 168 Ga.App. 874, 889, 311 S.E.2d 193 (1983), for authority that there was no error in permitting the argument. However, that decision did not have the general concurrence of a full division of this court since one judge concurred in the judgment only. It is, therefore, not a binding precedent. Haynes v. Hoffman, 164 Ga.App. 236(2), 296 S.E.2d 216 (1982). Being free to consider the issue anew, we choose not to follow the holding in that case.
The language discussed in Reliance Ins. Co., supra, was a quote from Savannah Elec. Co. v. Bell, 124 Ga. 663, 668, 53 S.E. 109 (1905), where the Supreme Court was explaining that the reason the legislature established a measure of damages which would provide more than compensation for plaintiffs in wrongful death actions was to provide a punishment for carelessness which was not provided by the criminal law. It is because the statute is itself punitive that punitive damages are not permitted in wrongful death actions. Ford Motor Co. v. Stubblefield, 171 Ga.App. 331(7), 319 S.E.2d 470 (1984). It should be noted that the decision to punish was the legislature's, and that it chose to do so by prescribing a particular measure of damages. There is nothing in the statute or in the case law to indicate that the jury is to be permitted to increase the amount of the award to express outrage at the manner in which the defendant caused the death of another.
A suggestion to the jury that it increase its award for the purpose of punishing the defendant is, therefore, a suggestion that the jury use some other measure of damages than that prescribed by statute. We cannot countenance argument which urges a jury to do something not authorized by the statute governing the action for the trial of which that jury was impaneled. We hold, therefore, that the trial court's decision to permit plaintiffs' counsel to argue the punitive nature of the action was error.
Plaintiffs' argument that defendant cannot raise the issue because he did not object to the argument when made is without merit: since defendant, in effect, made a motion in limine seeking an order forbidding the argument, and the trial court denied that relief, no objection was necessary to preserve the issue for appellate review. Cf. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284(1), 260 S.E.2d 20 (1979).
The harm caused by the error became apparent during jury deliberation. The jury sent a communication to the trial judge as follows: Defendant asked for a mistrial and, when that was denied, an instruction that punitive damages could not be awarded. The trial court, instead, merely told the jury that Defendant objected to the charge. The court's recharge, especially when considered in light of the inappropriate argument and the jury's question, was such as to ...
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...did not unduly emphasize the ordinary negligence standard and were not confusing or misleading). Cf. Gielow v. Strickland , 185 Ga. App. 85, 86-87 (1), 363 S.E.2d 278 (1987) (holding that trial court’s error in allowing plaintiff’s counsel to argue that jury should punish wrongful death def......
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