Hughes v. Newell
| Decision Date | 30 November 1979 |
| Docket Number | No. 58623,58623 |
| Citation | 152 Ga.App. 618,263 S.E.2d 505 |
| Parties | HUGHES et al. v. NEWELL et al. |
| Court | Georgia Court of Appeals |
Mark J. Kadish, E. Marcus Davis, Audrey S. Rose, David L. Harrison, Atlanta, for appellants.
Richard B. Eason, Carolyn J. Kennedy, Atlanta, for appellees.
This is an action for damages arising from an automobile collision. Plaintiffs are Emory Doyle Hughes and Laura Hughes, husband and wife. The husband was allegedly injured when his vehicle was struck from the rear while stopped at a traffic light by a vehicle operated by defendant Leah Ann Williams Newell (this defendant has married since the date of the accident and at that time was Leah Ann Williams). The plaintiff wife sued for loss of consortium. Named as a co-defendant under the family purpose car doctrine was John Williams, the father of Leah Newell.
At the close of evidence, the trial court directed a verdict in favor of defendant John Williams and against plaintiffs, holding that plaintiffs had failed to present any evidence that the automobile operated by defendant Leah Newell was a family purpose automobile. The trial court also directed a verdict in favor of the plaintiffs and against defendant Leah Newell on the issue of negligence, submitting to the jury the issues of proximate cause and damages.
The jury returned a verdict in favor of Leah Newell, the remaining defendant. The plaintiffs' motion for new trial was denied and they now appeal contending that the evidence required a verdict in favor of the plaintiffs; that the trial court erred in allowing the defendant to inquire on cross examination as to the arrest record of the plaintiff Emory Hughes, and that the trial court erred in directing a verdict in favor of defendant John Williams. Held :
1. The motion of John Williams to dismiss the appeal as to him as a party defendant is denied. Although the caption of the motion for new trial did not name John Williams as a party, the service upon his attorney of a copy of the motion was compliance with the service requirement of Code § 70-306. Under Code Ann. § 6-803(a) () the pendency of a motion for new trial extends the time for filing a notice of appeal. All parties to the proceeding in the trial court shall be parties on appeal. Code Ann. § 6-802 ().
2. At the close of all evidence, but before argument, the court instructed the jury that the case was dismissed as to Mr. Williams, who was no longer in the case. The court then stated further: "Also, the Court has directed a verdict as to liability, but nothing else, not the question of causal relations or the nature and extent of any injuries received, if any, and about which I will charge you at the proper time." During the charge following argument, the court again instructed the jury as follows: Again the court instructed the jury that it had ruled as a matter of law "that the defendant was negligent," hence one of the questions the jury had to determine "is whether or not that negligence was the proximate cause of the plaintiffs' injuries or damages in this case."
The trial court should not have used the word "liability" when directing the verdict as to negligence only, for to find "liability" it contains both negligence and that this negligence was the proximate cause of the plaintiffs' injuries or damages. However, the court correctly instructed the jury that it still must determine "whether or not that negligence (of the defendant found as a matter of law to be in the case) was the proximate cause of the plaintiffs' injuries or damages."
The issue of liability was determined only in part by the trial court's direction of the verdict as to negligence in favor of plaintiffs and against Leah Newell. The issue of proximate cause remained as defendants were liable only if their negligence was the proximate cause of plaintiffs' injuries and damages. See Walls v. Parker, 146 Ga.App. 882, 883(2), 247 S.E.2d 556; Rhodes v. Levitz Furn. Co., 136 Ga.App. 514, 516(1), 221 S.E.2d 687; St. Paul Fire & Marine Ins. Co. v. Davidson, 148 Ga.App. 82, 83(2), 251 S.E.2d 32. Even in Walls v. Parker, 146 Ga.App. 882, 883(1), 247 S.E.2d 556, 557, supra, this court did not correctly refer to the meaning of liability for it there stated: "This testimony amounted to a confession of liability," when it really amounted to only a confession of "negligence as a matter of law." The court in the case sub judice properly directed the verdict as to one of the material issues only. See Code Ann. § 81A-150(a) (Ga.L.1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248). This did not require the jury to return any amount of damages for the plaintiffs.
The plaintiffs presented evidence of substantial damages. Plaintiff Emory Hughes testified that soon after the accident he was sore and that later his neck and upper back were giving him trouble. Then plaintiff Emory Hughes began having headaches. Two types of headaches were identified: one a continuing low level of pain and the other much more severe but of relatively short duration. Those headaches resulted in severe depression and other personality changes. Plaintiff Laura Hughes testified as to her loss of consortium arising from the altered behavior of her husband after he began having his headaches.
Considerable medical testimony was introduced by plaintiffs as to the diagnosis and treatment of plaintiff Emory Hughes' headaches and resulting emotional difficulties. That portion of the medical testimony which served to establish a causal link between the automobile collision and the headaches was expert opinion testimony as opposed to testimony as to a fact. The jury is always free to reject expert opinion testimony and substitute their own knowledge and experience. Woods v. Andersen, 145 Ga.App. 492, 494(4), 243 S.E.2d 748. We also note that the medical experts whose testimony was introduced by plaintiffs were not certain and conclusive as to the causal link between the automobile collision and the headaches suffered by the plaintiff Emory Hughes. One of the physicians testified that there was no way to say whether the headaches were a direct result of the collision and another noted that the types of headaches experienced by plaintiff Emory Hughes were not of the type which would be expected following a trauma involving the brain. Also, there was evidence that the possibility of a genetic problem...
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