Mobley v. Wright

• Court: Georgia Court of Appeals
• Writing for the Court: ELDRIDGE.
• Citation: Mobley v. Wright, 559 S.E.2d 78, 253 Ga.App. 335 (Ga. App. 2002)
• Decision Date: 16 January 2002
• Docket Number: No. A02A0506.,A02A0506.
• Parties: MOBLEY v. WRIGHT.

559 S.E.2d 78

253 Ga. App. 335

MOBLEY v. WRIGHT.

No. A02A0506.

Court of Appeals of Georgia.

January 16, 2002.

Fortson, Bentley & Griffin, Athens, John B. Parker, for appellant.

Bridges, Ormand & Faenza, Alvin L. Bridges, Atlanta, for appellee.

ELDRIDGE, Judge.

Plaintiff Louise Mobley, an elderly person, appeals from the judgment for defendant Eva Wright after a jury trial. The plaintiff objected to a jury charge on pre-existing injury, to removing a juror prior to the commencement of deliberations, and to the court's written response to a written jury question. Finding no error, we affirm.

On October 6, 1998, the defendant exited a shopping center parking lot and drove into the passenger side of the plaintiff's car as plaintiff drove down Church Street after also turning into the street from another parallel parking lot. Plaintiff received a fractured sternum in the collision. However, this elderly plaintiff contended that the collision was detrimental to her caring for herself and independent living. Plaintiff's physician testified that the injury shortened her independent living by as much as two years.

1. Plaintiff contends that the trial court erred in failing to properly instruct the jury on the law with regard to damages attributable to the aggravation of natural or pre-existing conditions. We do not find error.

The charge objected to was not a charge on aggravation of a pre-existing injury at all but was a general charge on pain and suffering that stated recovery for pain and suffering could be only for injuries tortiously caused. The trial court gave the complete pattern jury instructions on pre-existing injury and the aggravation of a pre-existing injury.

I would also take exception to what I've got marked as No. 20, which is the pain and suffering charge, the sentence that we added which reads: "The plaintiff may not recover for infirmities which are not the natural causes or which existed before the accident at issue." I would submit that that's confusing and it tends to lead them to think that even an aggravation of a natural, physical condition is improper.

Following the exception to the charge on pain and suffering, the trial court gave the pattern jury charge on the aggravation of a prior existing condition, which completely and adequately set forth the applicable law for the jury. See generally Bennett v. Jones, 218 Ga.App. 714, 715-716(2), 463 S.E.2d 158 (1995). Taken as a whole, the charge was neither ambiguous, misleading, or incorrect. Pittman v. State, 273 Ga. 849, 850(4), 546 S.E.2d 277 (2001).

More importantly, where the verdict was for the defendant, any error in the charge on damages is harmless and cannot be a basis for a grant of a new trial. Luke v. Spicer, 194 Ga.App. 183, 184(4), 390 S.E.2d 267 (1990).

The well established rule is that where the court incorrectly instructs the jury as to the measure of damages to be applied, if the jury exonerates the defendant so that the consideration of the measure of damages is eliminated from the case, the instructions given, even if erroneous, cannot be held to prejudice the plaintiff's cause.

(Citations and punctuation omitted.) Minter v. Leary, 181 Ga.App. 801(1), 354 S.E.2d 185 (1987).

2. Plaintiff contends that the trial court erred in improperly responding in writing to a written question from the jury after the close of evidence and prior to deliberations: "Can we see an accident report? Particularly, can we consider the question of whether or not Mrs. Mobley was wearing a seatbelt and if she was not, would this be considered negligence on her part?"

The trial court discussed the written response that the court would make to these questions with counsel prior to sending the response to the jury. The written response was, "no"; "you have all the evidence that is admissible in this case and cannot consider any other information." The plaintiff wanted a "no" to both questions. The trial court stated that to give a simple "no" answer could be construed as a comment on the evidence presented in the case by the jury. OCGA § 9-10-7.

"[Q]ualified jurors under oath are presumed to follow the trial court's instructions." Smith v. State, 267 Ga. 372, 374(3), 477 S.E.2d 827 (1996) (evidence introduced for a limited purpose under limiting instructions from the court); see also Gomillion v. State, 236 Ga.App. 14, 19(3)(d), 512 S.E.2d 640 (1999) (jury instructed not to consider indictment as evidence so that erroneously circled guilty on the indictment did not influence jury). Thus, the jury is presumed to have followed the trial court's instructions that they could consider only admitted evidence and could not consider other information, which is a correct statement of the law. See generally Wade v. State, 197 Ga.App. 464, 465(1), 398 S.E.2d 728 (1990). Therefore, in following the court's instructions, the jury would not have considered the issue raised in the questions.

3. The plaintiff contends that the trial court erred in dismissing a juror, without cause, at the close of the case but prior to the commencement of deliberations. We find no reversible error.

The juror, excused voluntarily, brought to the attention of the court and counsel that she knew plaintiff's psychiatrist and that knowledge could influence her impartiality. She stated: "I believe I may need to be disqualified from the jury as I think I know the psychiatrist and his billing method for his patients." The juror was never questioned about her written communication either by the attorneys or the trial judge prior to being excused. The trial...