Kiker v. Davis

Decision Date08 March 1961
Docket NumberNo. 38743,No. 2,38743,2
Citation118 S.E.2d 861,103 Ga.App. 289
PartiesT. L. KIKER v. Roberta W. DAVIS
CourtGeorgia Court of Appeals

Syllabus by the Court

1. This court will not set aside a verdict of a jury approved by the trial court on the ground that it is excessive unless it is clear from the record that such verdict was the result of bias or prejudice or was procured by corrupt means. No such showing is made in this record.

2. The excerpts from the charge of the court relating to future pain and suffering were supported by the evidence and were not otherwise subject to the objections urged against them.

3. It is error to instruct the jury that the plaintiff may recover if the defendant was negligent in any manner, without restricting the negligence of the defendant to that charged against him in the petition. However, while one of the excerpts of the charge here complained of was subject to that criticism, it is obvious from the charge as a whole that the jury could not have been misled into believing that a verdict could be returned against the defendant regardless of whether or not the acts of negligence charged against him were proved.

The plaintiff brought suit for $12,500 in the Superior Court of Whitfield County for injuries growing out of an automobile collision occurring on December 25, 1958, between the car in which she was riding and the car of the defendant being driven by the defendant's son under the family purpose doctrine. The defendant's answer alleges that the plaintiff's injuries, if any, were the sole proximate result of the negligence of the driver of the car in which she was riding.

On the trial the jury was authorized to find from the evidence that the plaintiff on impact was violently thrown against the windshield which was broken and against the instrument panel of the car in which she was riding. Her injuries consisted of a fracture of the bone of one of her fingers, fractures of the roots of three front teeth, injuries to her head, shoulder and arm, and multiple lacerations, contusions and abrasions. The latter healed within a few days. The head injuries cleared up within a few more days. She carried her arm in a sling for about one month. She suffered some pain from the arm and shoulder during that time. At the time of the trial (October term 1959) her hand was stiff and ached a little bit when she lifted anything heavy. Also at the time of the trial she still suffered some pain from the fractured roots of the three upper front teeth.

A doctor treated her fractured finger. It remained in a cast for approximately six or seven weeks. Her doctor was of the opinion that there was a good union at the time he removed the cast and dismissed the patient. He testified that in the event a bad union should have resulted, it would necessitate the removal of a part of the bone in order to get a completely painless finger. This was not probable. Her attending dentist was of the opinion that the three upper front teeth, the roots of which were fractured in the collision would abscess and have to be removed and that this would result in a depression of the upper lip. He testified that upon extraction the teeth could immediately be replaced by a partial plate, and after a few months a permanent bridge could be inserted but this would necessitate gold crowns on some other teeth which would show up in the mouth.

The jury returned a verdict for the plaintiff for $7,500. The defendant filed a motion for a new trial on the general grounds which was later amended by the addition of 6 special grounds.

The judgment of the trial court overruling the motion for a new trial as amended is assigned as error.

Hardin, McCamy & Minor, Carlton McCamy, Dalton, for plaintiff in error.

Pittman, Kinney & Pope, H. E. Kinney, Dalton, for defendant in error.

TOWNSEND, Presiding Judge.

1. Special ground 1 contends that the verdict is so excessive as to obviously be the result of bias and prejudice against the defendant.

Code, §§ 105-2015 provides as follows: 'The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.' This court does not have the broad discretionary powers invested in trial courts to set aside verdicts, and where the trial court before whom the witnesses appeared had the opportunity of personally observing the witnesses, including the plaintiff on the stand, has approved the verdict, this court is without power to interfere unless it is clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means. See Atlantic Coast Line R. Co. v. Wells, 78 Ga.App. 859 et seq., 52...

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11 cases
  • Reliance Ins. Co. v. Bridges, s. 66404
    • United States
    • United States Court of Appeals (Georgia)
    • November 17, 1983
    ...clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means. [Cit.]" Kiker v. Davis, 103 Ga.App. 289, 291, 118 S.E.2d 861. See also Melton v. Bow, 145 Ga.App. 272, 275(4), 243 S.E.2d 590. We do not find that any of these factors were Having e......
  • Southern Bell Tel. & Tel. Co. v. C & S Realty Co.
    • United States
    • United States Court of Appeals (Georgia)
    • January 17, 1977
    ...of damages being one for the jury, appellate courts should not interfere with such awards. Code Ann. § 105-2015; Kiker v. Davis, 103 Ga.App. 289, 290(1), 118 S.E. 861 (1961). However, applicable tariffs and contractual provisions here expressly limit Southern Bell's liability to specified a......
  • Jones v. Spindel
    • United States
    • United States Court of Appeals (Georgia)
    • January 4, 1973
    ...Ga.App. 480, 492, 164 S.E.2d 318, 328. See also Radio Cabs, Limited v. Tolbert, 86 Ga.App. 181, 188, 71 S.E.2d 260 and Kiker v. Davis, 103 Ga.App. 289, 290, 118 S.E.2d 861. 3. Defendants contend plaintiff cannot recover because his activities constituted a violation of our statute concernin......
  • Great Atlantic & Pacific Tea Co. v. Turner, 72903
    • United States
    • United States Court of Appeals (Georgia)
    • October 14, 1986
    ...in a motion for new trial from its review of cases where the appellant first enumerates the error in a direct appeal. Kiker v. Davis, 103 Ga.App. 289, 118 S.E.2d 861 (1961) and Shepherd Constr. Co. v. Vaughn, 88 Ga.App. 285, 76 S.E.2d 647 (1953), relied upon by the special concurrence, mere......
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