Jones v. Davis

• Decision Date: 22 June 1987
• Docket Number: Nos. 74075,74076,s. 74075
• Citation: 183 Ga.App. 401,359 S.E.2d 187
• Parties: JONES v. DAVIS. (Two Cases).
• Court: Georgia Court of Appeals

Page 187

359 S.E.2d 187

183 Ga.App. 401

JONES v. DAVIS. (Two Cases).

Nos. 74075, 74076.

Court of Appeals of Georgia.

June 22, 1987.

Stevan A. Miller, Atlanta, Michael C. Garrett, Augusta, Janet George Blocher, Atlanta, for appellants.

George W. Fryhofer, Waynesboro, George W. Fryhofer III, Atlanta, for appellee.

SOGNIER, Judge.

Evelyn McClellan Davis brought suit both individually and as administratrix of the estate of Robert McClellan against Clifford Jones, d/b/a Dairy Queen and Kwik Shop, and Carey Jones for the wrongful death of her son, Robert. The jury returned a verdict in favor of Davis for the full value of Robert's life, medical and funeral expenses, and exemplary damages. The trial court denied the motions for new trial made by Clifford Jones and Carey Jones. Their individual appeals have been consolidated in this opinion.

Appellant Carey Jones ("Carey") was employed as a store clerk at the convenience store owned by his father, appellant Clifford Jones ("Clifford"), at the time appellee's deceased entered the store. The evidence at trial differed as to the events that followed; however, the jury was authorized to believe that as the result of an argument over change for a $100 bill appellee's deceased had tendered as payment for a purchase, Carey shot appellee's deceased four times in the chest. Appellee's deceased died shortly thereafter.

1. Both appellants contend the trial court erred by instructing the jury on the doctrine of res ipsa loquitur. Proper objection was made to the charge and in response the trial court agreed the charge was not applicable but that counsel for Clifford had argued it continually, even in closing. The trial judge then stated "[i]t's for that reason that I gave the charge and the Court will not back off of that." In its order on appellants' motions for new trial, the trial court acknowledged it had misunderstood counsel's references to "respondeat superior" to be references to "res ipsa loquitur." The trial court found any error in the charge to be harmless, though, since res ipsa loquitur when applied authorizes only an inference of ordinary negligence and the jury verdict awarding appellee exemplary damages necessarily embraced a jury finding that the shooting was the result of either a wilful and intentional act or, alternatively, a needless and wanton act.

Initially, we do not agree with appellee's argument that appellants waived any objection to the res ipsa loquitur charge. Appellants' objection to this charge fully apprised the trial court of the error committed thereby affording the trial judge an opportunity to correct the error. See generally Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 16, 195 S.E.2d 417 (1973). Since "the statutory requirement is only that he shall state 'distinctly the matter to which he objects and the grounds of his objection' [OCGA § 5-5-24 (a) ]," A-1 Bonding Svc. v. Hunter, 125 Ga.App. 173, 179(4b), 186 S.E.2d 566 (1971), aff'd, 229 Ga. 104, 189 S.E.2d 392 (1972), appellants' counsel fulfilled that requirement by making a proper and specific objection and being informed that the trial court would "not back off" its ruling; thus, appellants' counsel's failure to object further to the charge will not be considered a waiver pursuant to OCGA § 5-5-24(a).

The law in Georgia is clear that it is error to charge the doctrine of res ipsa loquitur where, as here, the cause of the incident is subject to proof by direct evidence since it "is a doctrine of necessity to be applied, where otherwise appropriate, in cases where there is no evidence of consequence showing negligence on the part of the defendant." Southern Bell Tel., etc., Co. v. LaRoche, 173 Ga.App. 298, 299(1), 325 S.E.2d 908 (1985). See also Minkovitz v. Fine, 67 Ga.App. 176, 19 S.E.2d 561 (1942). Legal error being a compound of both error and injury, see Harrison v. Hester, 160 Ga. 865, 129 S.E. 528 (1925), appellee argues that the error in charging the jury on the doctrine of res ipsa loquitur failed to injure appellants and thus constituted harmless error. We note that "when an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless." Barton v. State, 79 Ga.App. 380, 387(2), 53 S.E.2d 707 (1949).

In support of the argument that the charge on res ipsa loquitur was harmless error, appellee reiterates the trial court's ground for denying appellants' motions for new trial, namely, that the award of exemplary damages in favor of appellee established that any error in charging res ipsa loquitur had no effect on the jury. Although the trial court's charge contained an instruction discussing ordinary negligence, the res ipsa loquitur charge did not specify what type of negligence it encompassed. The "punitive" damages charge did not refer to negligence at all, stating merely that "[p]unitive, that is, aggravated damages, may be authorized when the circumstances of the wrong are such as to show an entire want of care and indifference to consequences." Thus, it is apparent neither the "punitive" damages charge nor any other charge given by the trial court would have clarified to the jury the distinction between the ordinary negligence of res ipsa loquitur and the wilful or wanton negligence necessary for exemplary damages. Mindful of the fact that charges are deemed to be given to jurors of ordinary...