Patterson Bank v. Gunter

• Decision Date: 26 September 2003
• Docket Number: No. A03A1006.,A03A1006.
• Citation: Patterson Bank v. Gunter, 263 Ga.App. 424, 588 S.E.2d 270 (Ga. App. 2003)
• Parties: PATTERSON BANK v. GUNTER.
• Court: Georgia Court of Appeals

588 S.E.2d 270

263 Ga. App. 424

PATTERSON BANK v. GUNTER.

No. A03A1006.

Court of Appeals of Georgia.

September 26, 2003.

Taylor Odachowski & Sperry, Philip R. Taylor, Donna L. Crossland, St. Simons Island, for appellant.

Fred R. Kopp, Alma, John R. Thigpen, Sr., Blackshear, for appellee.

ELLINGTON, Judge.

A Pierce County jury returned a verdict in favor of Carolyn Gunter in her slip and fall action against the Patterson Bank.¹ The bank appeals from the denial of its motion for a new trial, which was based on its post-trial discovery of a juror's disqualification and on the amount of the award for general damages. Finding no error, we affirm.

1. The bank contends it is entitled to a new trial because a juror was disqualified from serving due to his familial relationship

to Gunter. See OCGA § 15-12-135(a) (a juror is disqualified if the juror is related "by consanguinity or affinity" to any party "within the sixth degree as computed according to the civil law"). The week after the trial, the bank discovered that the juror was related to Gunter within the prohibited degree of kinship.

After verdict, a litigant cannot obtain a new trial by reason of the fact that a juror is disqualified by relationship, unless the litigant can show that before the verdict it and its counsel did not know of the relationship and could not have discovered the relationship by the exercise of ordinary diligence. Reid v. State, 204 Ga.App. 358, 361(2), 419 S.E.2d 321 (1992); Millers Nat. Ins. Co. v. Waters, 97 Ga.App. 103, 109(2), 102 S.E.2d 193 (1958). "[W]here the party or [its] counsel has reason to believe that a disqualification exists, the burden is on them to make further investigation to determine the truth of the situation, and in the absence of further investigation such disqualification is waived and a judgment overruling such ground of the motion for new trial is not reversible error." (Citation omitted.) Norman v. Norman, 103 Ga.App. 626, 629(2), 120 S.E.2d 42 (1961). When a motion for new trial is supported by evidence of a juror's disqualification, we review the trial court's decision under the abuse of discretion standard. Millers Nat. Ins. Co. v. Waters, 97 Ga.App. at 109(2), 102 S.E.2d 193.

In this case, the bank deposed Gunter four years before the trial. The bank asked Gunter if she had relatives among the broad class of persons who could be summoned as jurors in the trial of the case, that is, adult residents of Pierce County.² Gunter answered: "I don't but my husband has some cousins." Gunter did not know their names and said, "You will have to ask [my husband]. There are several cousins." Gunter contends her deposition answer put the bank on notice that further investigation would be required to discover the names of those relatives so that prospective jurors could be questioned about any relationship to Gunter's husband. We agree. Millers Nat. Ins. Co. v. Waters, 97 Ga.App. at 109-110(2), 102 S.E.2d 193 (trial court was authorized to find lack of due diligence where party failed to obtain list of interested corporation's stockholders so that disqualified relatives of stockholders could be discovered on jury panel). The trial court did not abuse its discretion in denying the bank's motion. Id.; Norman v. Norman, 103 Ga.App. at 629(2), 120 S.E.2d 42.

2. The bank contends it is entitled to a new trial because the jury's award was so excessive as to warrant a new trial. See OCGA § 51-12-12(a).³

The amount of damages returned by a jury in a verdict for pain and suffering due to alleged negligence is governed by no other standard than the enlightened conscience of impartial jurors. And the defendant has a heavy burden under OCGA § 51-12-12(a) to establish that such a damage award is excessive[.] In particular, appellate courts should be hesitant to second-guess verdicts where the damage award is based in any significant part on pain and suffering.... Therefore, for this Court to overturn the jury's verdict, it must be so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake by the jurors. Moreover, because the trial court approved the verdict in denying [the appellant's] post-trial motion, a presumption of correctness arises that will not be disturbed absent compelling evidence.

(Citations and punctuation omitted.) Beam v. Kingsley, 255 Ga.App. 715, 716(1), 566 S.E.2d 437 (2002).

In this case, the bank argues that the jury's award of $621,129.68 is inconsistent with the preponderance of the evidence and shocks the moral senses based on such facts as (1) the total award is nearly thirty times Gunter's total special damages (in this case, her medical expenses) of $21,129.68; (2) Gunter missed only five weeks from work before returning part-time and returned full-time after ten weeks; (3) Gunter sustained only a five percent total body disability and a twelve percent disability to one leg; and (4) Gunter did not require medical care for her knee in the years after the injury and manages the residual pain with over-the-counter medications. But, as Gunter argues, "this Court has consistently rejected attempts by appellants to reverse awards based on any mathematical formulae." Indeed, the bank does not identify any case where, based on the factors argued here, our appellate courts have reversed a jury's award which was approved by the trial court in a post-trial ruling.

The jury heard the victim's testimony about the pain she suffered immediately after she fell and during her recuperation as well as the pain she continues to suffer and the limitations on her life activities. Given the evidence, the amount of the jury's award here is not so flagrant as to shock the conscience, and we cannot find that the trial court abused its discretion in denying the bank's motion. J.B. Hunt Transport v. Brown, 236 Ga.App. 634, 637(3), 512 S.E.2d 34 (1999); Whitley v. Ditta, 209 Ga.App. 553, 554-555(2), 434 S.E.2d 108 (1993); Atlanta Transit System v. Robinson, 134 Ga.App. 170-171(1), 213 S.E.2d 547 (1975).

Judgment affirmed.

RUFFIN, P.J., MILLER and PHIPPS, JJ., concur.

SMITH, C.J., ANDREWS, P.J., and BLACKBURN, P.J., dissent.

BLACKBURN, Presiding Judge, dissenting.

In the first Division of this case, the majority holds that Patterson Bank was not entitled to a new trial even though one of the jurors was disqualified because of his familial relationship to the plaintiff, and bases that holding on its conclusion that the bank did not exercise ordinary diligence in discovering the relationship. Because controlling precedent indicates that Patterson Bank exercised due diligence in seeking to discover any disqualifying factors of the prospective jurors, I must respectfully dissent.

A party has a duty to exercise ordinary diligence to discover any disqualifying factor of a juror. Under the facts of this case and guided by precedent, we cannot say that there was a lack of ordinary diligence on the part of the bank. On the question of diligence, this Court has quoted with approval the following:

When parties are furnished with a list of the jury, it is their duty, if they know that any of the jurors are disqualified, to call attention to the same, or the disqualification will be held to have been waived. If they have reasonable grounds to suspect that any of the jurors are disqualified, it is their duty to call attention to the fact, so that due inquiry may be made of the panel. Further than this they are not required to go. Due diligence requires no more than this.

(Punctuation omitted; emphasis supplied.) Jennings v. Autry.⁴

The transcript shows that the trial court, in conducting voir dire, asked the prospective jurors whether any of them were related by blood or marriage to Carolyn Gunter. One juror, Edith Gunter, told the court that she did not know if her husband was related to Gunter. Plaintiff's counsel informed the court that Edith Gunter's husband might be related as a fourth or fifth cousin. The court made other inquiries, including whether any of the jurors were related to employees of the bank. One juror, Thornton, responded that he was a first or second cousin to a bank employee; another, Smith, stated that her husband's nephew worked at the bank. The trial court disqualified Edith Gunter, Thornton, and Smith for being within the prohibited degree.

Dwayne Aldridge, the juror later discovered to be related to Gunter, did not respond when the trial court asked if any of the jurors were related by blood or marriage to the plaintiff. "It is obvious that the juror, who was asked the question along with the rest of the panel, was under a duty to speak and that the failure to answer was tantamount to an oral response that he [was not related by blood or marriage to] the plaintiff." Glover v. Maddox.⁵

It is undisputed that Aldridge is within the prohibited degree of kinship with Gunter. "Bias is conclusively presumed or inferred as a matter of law regardless of actual partiality, where a juror is related to a party. In that circumstance, `disqualification on the basis of implied bias is mandatory.'" (Citation omitted.) Kirkland v. State.⁶ Beyond that, the fact that Aldridge served as foreman of the jury exacerbates any bias he may have had. Pierce v. Altman⁷ ("[I]f there was any bias here, even a subtle or vague one, its effect could be compounded by the fact that this particular juror has been elected jury foreman, which may well indicate that he has a charisma or prestige which would accentuate the impact of his opinions and augment his persuasiveness.").

Aldridge claims that he did not know of his kinship to the plaintiff. That fact, if true, is irrelevant. "It is contrary to public policy to allow a juror, after participating in the making of a verdict, to assert ignorance of any fact which rendered him incompetent to serve. The fact that the juror was ignorant of his disqualification at the time of...