Hogan v. Malcom, 3

• Citation: 129 S.E.2d 808,107 Ga.App. 241
• Decision Date: 22 January 1963
• Docket Number: No. 3,3
• Parties: James HOGAN v. Mrs. Alton MALCOM et al. No 39838
• Court: United States Court of Appeals (Georgia)

Page 808

129 S.E.2d 808

107 Ga.App. 241

James HOGAN v. Mrs. Alton MALCOM et al.

No 39838.

Court of Appeals of Georgia, Division No. 3.

Jan. 22, 1963.

Syllabus by the Court.

When there is evidence of pain and suffering by the plaintiff but no evidence to support the special damages pleaded in the petition, a verdict in the same amount as the plaintiff's pleaded medical expenses will not be set aside as being inadequate.

The plaintiff (plaintiff in error) sued the defendant (defendant in error) for personal injuries the plaintiff allegedly received in a collision when the defendant ran into him in an intersection after failing to stop at a stop sign and otherwise driving negligently. The plaintiff pleaded damages of $5,272.38, of which $272.38 were special damages (medical expense). After being awarded a verdict and judgment of $272.38 the plaintiff made a motion for new trial on the general and special grounds. The trial court overruled the motion for new trial, and the plaintiff assigns error on this judgment.

Mark Dunahoo, Winder, for plaintiff in error.

William L. Preston, Monroe, for defendant in error.

HALL, Judge.

1. Special ground 7 complains that the trial judge charged the jury on comparative negligence when the evidence did not authorize a finding of negligence on the part of the plaintiff. The defendant makes the point that the charge complained of is not set forth in the plaintiff's assignment of error. 'A special ground of a motion for a new trial is not complete within itself so as to present a question for adjudication where, to make it intelligible, it is necessary to refer to other parts of the record, including the charge of the court.' Bryant v. State, 104 Ga.App. 496, 497, 121 S.E.2d 920, 922.

2. There is no merit in special ground 8 which complains that the court failed to charge the jury on the measure of damages for diminution in the plaintiff's capacity to earn money. The court's charge included an instruction on this subject. See Hunt v. Williams, 104 Ga.App. 442, 450, 122 S.E.2d 149, respecting proof of such damages.

3. The contention made by the plaintiff to support the general grounds and special ground 6 is that the jury's verdict established that the defendant was liable but the verdict was inadequate because it was for less than the actual damages proved.

The case of Tallent v. McKelvey, 105 Ga.App. 660, 125 S.E.2d 65, cited by the plaintiff is different from this case. There the evidence 'authorized the...