National Trailer Convoy, Inc. v. Sutton

• Decision Date: 06 November 1975
• Docket Number: No. 51014,No. 2,51014,2
• Citation: 222 S.E.2d 98,136 Ga.App. 760
• Parties: NATIONAL TRAILER CONVOY, INC., et al. v. Lee SUTTON
• Court: Georgia Court of Appeals

Page 98

222 S.E.2d 98

136 Ga.App. 760

NATIONAL TRAILER CONVOY, INC., et al. v. Lee SUTTON.

No. 51014.

Court of Appeals of Georgia, Division No. 2.

Nov. 6, 1975.

Rehearing Denied Nov. 26, 1975.

Owens & Hilyer, Seymour S. Owens, Tifton, for appellants.

Reinhardt, Whitley & Sims, Glenn Whitley, Tifton, for appellee.

CLARK, Judge.

Was the plaintiff's $91,000 verdict by reason of its amount so excessive on the facts as to justify the inference of prejudice, undue bias, or gross mistake? That is the principal problem presented for determination here. Other matters contained in the twelve enumerations of error deal with the timing and content of hypothetical questions presented to expert witnesses and attacks upon the judge's charge to the jury.

National Trailer Convoy, Inc. and Midland Insurance Company as defendants below have taken this appeal directly from a judgment for $91,000 entered against them upon a verdict in that amount obtained by plaintiff Sutton. Plaintiff's suit against the motor common carrier and its insurer sought damages for his personal injuries, medical expenses, loss of earnings and property damage. It was based on negligence by the driver of defendants' truck which ran into plaintiff's vehicle from plaintiff's rear as plaintiff was signaling by means of a blinker light his intention to make a right turn into his home driveway.

1. We deal first with the eleventh enumeration of error contending that the 'verdict is so excessive as to justify the inference of prejudice, undue bias, or gross mistake, and is such as to shock moral sense, and indicate that the Jury was actuated by undue influence or improper motives.'

This assignment is limited necessarily to 'inference', there being no direct evidence of passion or prejudice to show the existence of those inculpatory elements which would require reversal. Appellants note the defendants were 'foreigners' and that one is an insurance company and the other a trailer convoy concern. This situation of 'target defendants' must be considered but standing alone it is not sufficient. 'The existence of prejudice or bias cannot rest upon suspicion.' City of Rome v. Davis, 9 Ga.App. 62, 67, 70 S.E. 594, 596. Our examination of the record shows plaintiff had 23 relatives residing in Tift County but this fact of numerous kin-folk is not shown to have in any way influenced the verdict.

In the present instance the appeal was taken directly from the judgment entered on the verdict and without having first filed a motion for new trial. Thus 'the buck stops here' without benefit of the views of the '13th juror', the trial judge whose views are accorded great weight by appellate courts. See So. Ry. Co. v. Miller, 3 Ga.App. 410, 59 S.E. 1115 and St. Paul Fire & Marine Ins. Co. v. Dillingham, 112 Ga.App. 422, 145 S.E.2d 624.

Appellant emphasizes the quantum of special damages as contrasted with the total of $91,000 and urges the verdict to be so large as to justify a belief that it could not reasonably have resulted from any other cause than bias or gross mistake on the part of the jury. In support of this contention appellant cites the rulings to this effect in Western & Atlantic Railroad Co. v. Young, 83 Ga. 512, 10 S.E. 197, Seaboard Airline Railway Co. v. Miller, 5 Ga.App. 402(1), 63 S.E. 299, Swift & Co. v. Lawson, 95 Ga.App. 35(8), 97 S.E.2d 168, and Western & Atlantic Railroad Co. v. Wright, 79 Ga.App. 733(4), 54 S.E.2d 655.

Appellants compute the special damages to be $5,995 in the way of damages to plaintiff's vehicle and for medical expenditures and loss of earnings up to the date of trial. Plaintiff disagrees, asserting these special damages to be $8,000.33. In either event, after taking into consideration future estimated medical and various elements of recoverable damages, it is clear that a substantial portion of the verdict was based upon the important, intangible pain and suffering, which is governed by no standard save that of the enlightened consciences of the jurors. Trammell v. Atlanta Coach Co., 51 Ga.App. 705(2), 181 S.E. 315. We cannot invade the deliberations of the jury to find out what motive or influence entered into their conclusion. We must also recognize that 'On appeal the evidence is to be construed to sustain, rather than to destroy the verdict, for every presumption and inference is in its favor. (Cits.).' Atlanta Coca-Cola Bottling Co. v. Jones, 135 Ga.App. 362, 368, 218 S.E.2d 36, 40.

Amounts awarded in other cases are of slight use in determining excessiveness because 'to make any comparison of the verdict in this case with any other verdict that would be of any substantial evidentiary value, we would have to find a case practically similar in all essential details, with substantially the same number and kind of injuries sustained by the plaintiff in this case, and no similar case has been brought to our attention.' Western & Atlantic R. Co. v. Burnett, 79 Ga.App. 530, 541, 54 S.E.2d 357, 366. ¹

It is important to note that there is no question of liability. Defendants were handicapped in being unable to produce their driver and the vigorous and astute cross-examination by defense counsel did not result in raising a question of comparative negligence (even though the charge included this possibility).

Undoubtedly one of the most cited quotations in dealing with this question is the colorful language contained in Realty Bond, etc. Co. v. Harley, 19 Ga.App. 186, 187, 91 S.E. 254, 255. 'Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear 'exorbitant,' 'flagrantly outrageous,' and 'extravagant.' 'It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.' It must carry its death warrant upon its face.'

In the light of this standard, we examine the facts before us. At the time of the collision plaintiff was 60 years of age with a life expectancy of 14.14 years and in good health. In addition to his employment as school bus driver, he owned and operated a farm where he performed plumbing, carpentry, painting and similar activities.

We continue in our recital of the facts by quoting from the appellee's brief which we found to be supported by the transcript. It reads as follows: 'As a result of the collision, plaintiff's right ear was almost completely cut off, he had contusions to his head, contusions to his back, abrasions to his face, contusions and bruises to both legs, injuries to his right knee, neck injuries, chest injuries and a collapse of both lungs. At the emergency room of the hospital, plaintiff was in shock, suffering from a loss of considerable blood and his condition was critical. It took between 50 and 100 stitches to sew up his wounds. Plaintiff remained in the hospital for 9 days in severe pain. He was confined to his home for approximately one year, unable to even drive an automobile. Plaintiff wore a neck brace for approximately one year, saw his doctor frequently, took physical therapy treatment, took drugs and medicine and followed other long-range treatment of his doctors. The plaintiff has been in constant pain since the date of the collision to the present time and has been unable to pursue any type of gainful employment. The injury to plaintiff's right knee causes his knee to occasionally lock up and his knee is sensitive. The range of motion of plaintiff's neck is extremely limited and he is unable to turn his head back or to either side without turning his shoulders and body. The plaintiff has not had a single day free of pain since the date of the collision in spite of the fact that he takes pain pills and other drugs daily. His drug bill runs approximately $40.00 per month.

'Two doctors testified that his injuries were caused by the wreck and that the injuries to his cervical spine are permanent. Although there was some evidence revealed by x-rays that the plaintiff may have had mild degenerative arthritis in his cervical spine before the accident, the plaintiff was unaware of it, he had never had any pain from it and had never been treated for such a condition. Plaintiff's family doctor testified that the plaintiff was in generally good health prior to the subject collision. The medical testimony also showed that the injuries sustained by the plaintiff would greatly aggravate the preexisting dormant arthritis.

'The evidence also showed that the plaintiff had considered having his right knee operated on and had consulted several doctors concerning this, but that he had been advised against such an operation. The evidence authorized a finding that the injury to his knee was also permanent.'

Recognizing that sums found for future pain and suffering are not reducible to present cash value (So. Ry. Co. v. Bottoms, 35 Ga.App. 804(2), 134 S.E. 824; Bagley v. Akins, 110 Ga.App. 338, 138 S.E.2d 430) it cannot be said, under the recited facts, that the verdict is such as to justify the inference of gross mistake or undue bias. As was said in one of this court's early decisions: 'The law fixes no measure for pain...