Groover v. Dickey
| Decision Date | 30 November 1984 |
| Docket Number | No. 69121,69121 |
| Citation | 173 Ga.App. 73,325 S.E.2d 617 |
| Parties | GROOVER et al. v. DICKEY. |
| Court | Georgia Court of Appeals |
C. James Jessee, Jr., Pamela K. Montague, Atlanta, for appellants.
J. Blair Craig II, Edward Marks, Atlanta, for appellee.
This is an unusual case involving the explosion of a Civil War artillery shell. The appellee, Thomas Dickey, is a collector of Civil War projectiles and author of several authoritative books and articles on the subject. Mr. Dickey's collection contained a rare Hotchkiss shell which was believed to be a solid shot containing no explosives. The appellant, James Groover, a carpenter/contractor, was hired by Dickey to perform corrective work on the shell which had a crooked base. Groover constructed a forge with a used paint can, charcoal and a vacuum cleaner in his backyard in order to heat the projectile and perform the corrective work on the base of the shell. Believing the shell to be solid iron, Groover heated it until it finally exploded; causing him to become in Dickey's words, "the last casualty of the seige of Vicksburg." Groover sustained an injury to his leg and knee which, according to his orthopedic surgeon, resulted in a 5% physical disability. Groover brings this appeal from a judgment entered on a jury verdict awarding him $10,000 and awarding his wife, Pamela, nothing on her claim for loss of consortium.
1. Appellants first contend that the verdicts in this case are inconsistent and repugnant and that the trial court erred in denying their motions for a judgment notwithstanding the verdict and for a new trial.
The record indicates that the Groovers combined their claims in one suit. In Stapleton v. Palmore, 250 Ga. 259, 297 S.E.2d 270 (1982), the Supreme Court affirmed this court's decision in that case at 162 Ga.App. 525, 291 S.E.2d 445 (1982) and stated it correctly followed the rule set forth in Douberly v. Okefenokee etc. Corp., 146 Ga.App. 568, 246 S.E.2d 708 (1978); Burnett v. Doster, 144 Ga.App. 443, 241 S.E.2d 319 (1978); Clark v. Wright, 137 Ga.App. 720, 224 S.E.2d 825 (1976); Jarrett v. Parker, 135 Ga.App. 195, 217 S.E.2d 337 (1975) and White v. Hammond, 129 Ga.App. 408, 199 S.E.2d 809 (1973), which holds that where the injured person and the spouse combine their separate claims in one lawsuit the loss of consortium claim is derivative, and where one jury has heard evidence on the same issue it cannot render inconsistent verdicts. As the evidence as to Pamela Groover's claim of loss of consortium is uncontradicted that portion of the trial court's judgment must be reversed and she is entitled to a new trial on the issue of damages. Clark v. Wright, supra.
2. Appellants next claim that the trial court erred in denying their motion for a directed verdict on the issue of liability. There are several material facts which are in dispute. Groover claimed he told Dickey of his plans to heat the projectile. Dickey denied any knowledge of Groover's intention to heat the shell and also denied telling Groover it was safe to heat it. Dickey claims to have suggested a mechanical means of separating the base of the shell.
If there is no conflict as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdicts shall be directed. OCGA § 9-11-50 (Code Ann. § 81A-150). Questions of negligence, diligence, comparative negligence and proximate cause are matters for a jury. A court should not take the place of a jury in solving them except in plain and indisputable cases. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 224 S.E.2d 25 (1976); Pike v. Stafford, 111 Ga.App. 349, 141 S.E.2d 780 (1965). A careful review of the record indicates there were several issues of material fact as to liability which required resolution by a jury.
3. In appellants' third enumeration of error they argue that the trial court erred in overruling a motion for a new trial and assert the general grounds including the contention that the verdict was contrary to the weight of the evidence. "If the trial judge overrules the general grounds, appellate courts consider only the sufficiency of the evidence, not the weight of the evidence." Ridley v. State, 236 Ga. 147, 149, 223 S.E.2d 131 (1976). Where the verdict is supported by some evidence and is approved by the trial court, this court is without authority to interfere. Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga.App. 154, 264 S.E.2d 662 (1980). The verdict, in the instant case, was supported by the evidence and was not erroneous as a matter of law.
4. Appellants allege that under Seagraves v. ABCO Mfg. Co., 118 Ga.App. 414, 164 S.E.2d 242 (1968), the trial court erred in giving instruction to the jury with respect to comparative negligence, assumption of the risk and contributory negligence.
A review of the transcript shows that the trial judge charged the jury from the Seagraves case. The jury charge is over 30 pages in length, and after reviewing the charge in its entirety, we find the court gave a fair and accurate charge of the law. See Bailey v. State, 163 Ga.App. 464, 294 S.E.2d 702 (1982).
5. There is no merit in appellants' fifth enumeration of error which claims that the trial court erroneously eliminated the issue of impaired or diminished earning capacity from the case. The transcript shows that this issue was included in several of the court's charges including one which was given verbatim from one of appellants' requests to charge.
6. The trial court correctly ruled that appellant's loss of future earnings was not a proper item of damages for recovery under the evidence presented at trial. Groover testified that his injuries prevented him from taking several jobs which had been scheduled and included work on a toy museum in Massachusetts and would have resulted in earnings of $50,000. There was, however, no evidence of a contract or commitment by the other party nor was there evidence as to expenses, time on the job or costs of materials. Any award by the jury as to appellant's lost profits would have been purely speculative. Appellants' cite Southern Cotton Oil Co. v. Skipper, 125 Ga. 368, 372, 54 S.E. 110 (1906) which states, "one element of such damage, if the...
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