Norfolk Southern Ry. Co. v. Thompson

• Decision Date: 10 March 1993
• Docket Number: No. A92A2122,A92A2122
• Citation: 208 Ga.App. 240,430 S.E.2d 371
• Parties: NORFOLK SOUTHERN RAILWAY COMPANY v. THOMPSON.
• Court: Georgia Court of Appeals

Page 371

430 S.E.2d 371

208 Ga.App. 240

NORFOLK SOUTHERN RAILWAY COMPANY v. THOMPSON.

No. A92A2122.

Court of Appeals of Georgia.

March 10, 1993.

Reconsideration Denied March 30, 1993.

Certiorari Denied July 1, 1993.

Branch, Pike & Ganz, Eileen M. Crowley, Daryl G. Clarida, Atlanta, for appellant.

Jones & Granger, C. Michael Hardman, Atlanta, for appellee.

BEASLEY, Judge.

Thompson, a machinist for Norfolk Southern Railway Company, slipped and fell on company premises, causing a ruptured disc which was surgically removed and a bulging disc which is inoperable. He instituted this FELA action, alleging negligence by Southern in allowing oily substances to accumulate on the floor. The jury returned a verdict in favor of Thompson for $594,396. After deducting Thompson's railroad retirement benefits and supplemental sickness benefits pursuant to a pretrial stipulation, the court entered final judgment of $585,142.30.

1. Southern contends that the trial court erred in denying its extraordinary motion for new trial on grounds of newly discovered evidence.

Southern's position at trial was that Thompson was physically able to perform his job and that he was feigning disabling injuries in order to obtain disability benefits.

In its motion for new trial, Southern submitted an affidavit of one of its supervisory employees that approximately one week after final judgment was entered, Thompson telephoned the affiant, informed him that he was feeling "pretty good" and wanted to return to work at his old position, and that he presented a release from his treating physician, Dr. Sendele.

Thompson denied telling this employee that his medical condition had changed or that he wanted, or was able, to return to work at his old position, and Thompson submitted medical forms from Dr. Sendele in which he had actually placed restrictions on Thompson more stringent than those he had previously imposed.

"Newly discovered evidence which shows a condition of the injured person after the trial inconsistent with the showing of his condition made on the trial must be of such decisive character as to indicate that the verdict would have been different, or indicate that the plaintiff's claim in the first instance was based on fraud and concealment. [Cits.]" Atlantic Coast Line R. Co. v. Smith, 107 Ga.App. 384, 388 (7), 130 S.E.2d 355 (1963); see Perry v. Hammock, 75 Ga.App. 171, 172 (2), 42 S.E.2d 651 (1947). "The grant or denial of a new trial on account of newly discovered evidence is within the discretion of the trial judge, and his discretion will not be disturbed unless abused. [Cits.]" Atlantic Coast Line, supra 107 Ga.App. at 388, 130 S.E.2d 355. The trial court did not abuse its discretion in denying the motion.

2. Southern contends that the trial court erred in refusing to grant a mistrial when Thompson's attorney argued to the jury that Thompson's exclusive remedy was under the FELA and that he had no other option whatsoever.

Thompson's attorney stated in his opening statement that Thompson's remedy against his employer is under the FELA rather than workers' compensation law, and "[t]hat's the exclusive remedy and that's why we are here." Counsel also stated that Thompson is not covered by Social Security and that he did not have an independent source of health insurance or major medical benefits beyond two years.

In her opening statement, Southern's attorney responded that when plaintiff's counsel stated that this FELA action "is his exclusive remedy and that the only offset he will get is a pension, what they are not telling you is about the benefits that are available now and that he is receiving."

In questioning Thompson, his attorney asked about the benefits he was receiving as referenced in Southern's opening statement. Thompson stated that she was probably talking about his savings, which he had depleted, as a result of which he could not "pay off" his house. Southern objected on the ground that such matters have been "ruled to be irrelevant in a FELA suit." Thompson's attorney responded that under Georgia law a person's financial difficulty is admissible on the question of mental pain and suffering. The trial court then overruled Southern's objection. Southern then elicited testimony from Thompson on cross-examination that he was receiving sickness benefits from Southern and was eligible for railroad retirement sickness benefits.

In closing argument, Southern's attorney stated that Thompson was not going to be and never has been penniless and that he "has lots of options and one of his options is he can bring this lawsuit, which he has done." Thompson's attorney responded that he has no other option, that this is his exclusive remedy. Southern objected and moved for a mistrial, stating, "[w]e discussed this in chambers the other day and this is a misstatement by [counsel]." The court overruled the objection and denied a mistrial.

In a FELA case it is improper for the plaintiff to state to the jury that the FELA action is plaintiff's exclusive remedy. Stillman v. Norfolk & Western R. Co., 811 F.2d 834, 838(9) (4th Cir.1987); Kodack v. Long Island R. Co., 342 F.2d 244, 247(3) (2d Cir.1965); Tucker v. Kansas City Southern R. Co., 765 S.W.2d 308, 311(3) (Mo.App.1988); see also Foster v. Crawford Shipping Co., Ltd., 496 F.2d 788, 792(7) (3rd Cir.1974) (holding that references to plaintiff's straitened financial condition were improper in a personal injury action by a longshoreman). Conversely, it is improper for the defendant to state to the jury that plaintiff is in receipt of benefits from a collateral source such as the Railroad Retirement Board. Stillman, supra.

Consequently, Thompson's attorney's statements to the jury concerning this action being Thompson's exclusive remedy, Southern's response, and the rebuttals which followed were all improper.

On the one hand, there are cases holding that "[t]he fact that counsel for one party has used improper argument to the jury will not justify or authorize counsel for the opposing party to do likewise, under the principle of law that injuria non excusat injuriam. [Cit.]" Banks v. Kilday, 88 Ga.App. 307, 311(2), 76 S.E.2d 642 (1953). It also has been held that where counsel makes improper argument and there is an objection, it is the duty of the court to rebuke counsel and give curative instructions to the jury or declare a mistrial. See Ga. Power Co. v. Puckett, 181 Ga. 386, 394(3), 182 S.E. 384 (1935). On the other hand, it has been held that a party cannot during trial ignore what he or she thinks to be an injustice, take a chance on a favorable verdict, and complain later. Wright v. Wright, 222 Ga. 777, 781(4), 152 S.E.2d 363 (1966).

Southern's attorney moved for a mistrial only after meeting the issue head on and Thompson's attorney responded. Under all of the circumstances, the court's refusal to grant the mistrial was not a manifest abuse of discretion. See Walker v. Bishop, 169 Ga.App. 236, 241(8), 312 S.E.2d 349 (1983); Turner v. Wilmouth, 161 Ga.App. 2, 4(3), 288 S.E.2d 839 (1982).

3. Southern contends that the trial court erred in refusing to declare a mistrial when Thompson's attorney in cross-examining Gentry, Thompson's general foreman, alluded to a conference in which Thompson had been told that if he got hurt again he would be fired.

On direct examination by Southern, Gentry testified to discussions he had with Thompson after his injury, about doing his work safely without worsening his condition. On cross-examination, Thompson asked Gentry if he was involved in the conference in which Thompson was told that if he got hurt again he would be fired. Counsel stated that he asked this question because Thompson had told him that there had been such a conference. Southern objected, stating that Gentry could be asked if he had made such a statement but otherwise the question was improper. The court ruled that Gentry could answer the question. He then testified that although he was not involved in that conference, he was aware that it had taken place and that it involved the assistant superintendent Corbin.

Southern later moved to strike this testimony as hearsay, but when the court offered to allow Thompson to reopen the evidence in order to present direct testimony concerning the conference, Southern argued that such testimony would be inadmissible under Central of Ga. R. Co. v. Howard, 161 Ga.App. 560, 288 S.E.2d 347 (1982). Thompson responded that Southern opened the door to such testimony. The court disagreed, although it stated it could understand why Thompson's attorney felt otherwise.

Southern took the position that the grant of a mistrial was required because a curative instruction to the jury could not remove the prejudice. The court disagreed and Southern moved the court to rebuke Thompson's attorney in addition to giving a curative instruction. The court instructed the jury to disregard any references by Thompson's attorney to any threats by Southern and not to take such into consideration in deciding the case, that counsel's statement was improper, and that counsel would like to apologize for making that statement, which he did. Southern's attorney referenced this issue in her closing argument, whereupon Thompson raised an objection which the court sustained.

We do not find any abuse of discretion on the part of the trial court in instructing the jury to disregard the testimony and rebuking counsel rather than granting a mistrial. See Ga. Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384 (1935); Ga. Northern R. Co. v. Hathcock, 93 Ga.App. 72, 74(3), 91 S.E.2d 145 (1955); compare Central of Ga. R. Co. v. Howard, supra.

4. Southern contends that the trial court erred in granting Thompson's motion to quash Southern's notice to produce ex parte statements of Southern employees Shockey and Brown. The court granted the motion, based upon discussions between counsel and the court in chambers and unreported, so the reasons do not appear of...