Perryman v. Rosenbaum

• Decision Date: 09 September 1992
• Docket Number: No. A92A0806,A92A0806
• Citation: 205 Ga.App. 784,423 S.E.2d 673
• Parties: PERRYMAN v. ROSENBAUM et al.
• Court: Georgia Court of Appeals

Page 673

423 S.E.2d 673

205 Ga.App. 784

PERRYMAN v. ROSENBAUM et al.

No. A92A0806.

Court of Appeals of Georgia.

Sept. 9, 1992.

Reconsideration Denied Oct. 13, 1992.

Certiorari Granted Jan. 11, 1993.

Orr & Edwards, W. Fred Orr II, James G. Edwards II, Decatur, for appellant.

Allen & Peters, Hunter S. Allen, Jr., Bradley C. Reeves, Gary R. McCain, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

This is an interlocutory review of the trial court's order denying appellant/plaintiff's motion to strike certain sworn statements of jurors and granting appellees/defendants' motion for new trial in part as to an award of compensatory damages.

During medical malpractice litigation arising from the death of Rebecca Perryman, appellant settled with certain co-defendants for $500,000. As a result, the trial court pertinently charged the jury as follows: "If you find ... plaintiff is entitled to recover compensatory damages in this case, you should determine the total amount of compensatory damages due plaintiff and deduct from that amount the five hundred thousand dollars previously received by plaintiff from [the stated former co-defendants] in determining the amount of compensatory damages against [appellees/defendants].... By compensatory damages, the court means damages awarded for the pain and suffering of Rebecca A. Perryman and damages awarded for the full value of the life of Rebecca A. Perryman." (Emphasis supplied.) Appellees tendered no objection or exception to this particular charge, or to the trial court's instructions to the jury to record their verdict in writing on the verdict form provided. Subsequently, the jury inquired whether they could award exemplary damages without awarding compensatory damages. A recharge was given in answer to this question; the pertinent portion of this recharge states: "Before you could award any exemplary damages, you would have to award compensatory damages for the pain and suffering, or the alleged pain and suffering of Rebecca Perryman. Now, in this particular case you have been instructed that if you determine that the plaintiff is entitled to compensatory damages, you must then deduct from whatever amount you determine plaintiff is entitled to, the five hundred thousand dollars previously paid to the plaintiff by some other defendants who were in this case initially. So if you determine that the plaintiff is entitled to compensatory damages for the pain and suffering of Rebecca Perryman, and after deducting the five hundred thousand dollars, come up with a net award of zero, that would still be an award of compensatory damages insofar as it is necessary to award exemplary damages. If that doesn't answer your question, then put whatever other question, or questions you have in writing, and we will try again." (Emphasis supplied.) Although appellees posed a timely exception to the recharge, it was on a specific ground not here at issue and was not on the grounds that the recharge was confusing, ambiguous, or otherwise misleading. The jury thereafter posed no further questions concerning instructions to the court. Subsequently, a verdict in the following form was returned. "We, the jury, find for the plaintiff and against the defendants in the amount of $500,000 in compensatory damages, and in the amount of $85,000 in exemplary damages.... We, the jury, find that Dr. Rosenbaum was negligent. We, the jury, find that Nina Hill was not negligent and Dr. Rosenbaum is not liable for her negligence." Appellees' counsel, after being given the opportunity to examine the form of the verdict and to tender any objections thereto, stated: "Yes sir, it appears to be in proper form," and posed no objection. Notwithstanding the amount of the verdict, appellees elected not to poll the jury and acquiesced in the excusal of the jury. The verdict was filed with the clerk; judgment was entered the same day.

After the jurors had been excused, it became apparent to appellees upon talking with certain jurors that a mistake in the verdict may have occurred. Thereafter, contemporaneous with the tender of an amended motion for new trial, appellees tendered the sworn statements of 11 of the 12 jurors (the 12th juror on advice received from some source apparently elected not to tender a sworn statement but indicated she would talk to the court) stating that they had mistakenly believed the court would subtract the sum of $500,000 from the like award of compensatory damages, and that after deducting the $500,000 settlement the verdict should have reflected "$0" compensatory damages. Held:

1. The standard of review in this case is whether the trial court abused its discretion in denying appellant's motion to strike the affidavits and in granting a new trial on the issue of compensatory damages. Compare OCGA § 5-5-50 with § 51-12-12; see Moultrie Farm Center v. Sparkman, 171 Ga.App. 736, 739(4), 320 S.E.2d 863. For reasons hereinafter discussed, we find that an abuse of discretion did occur.

2. OCGA § 9-10-9 provides: "The affidavits of jurors may be taken to sustain but not to impeach their verdict." This statute follows a time-tested general rule necessary for the preservation of the integrity of the judicial system and for the protection of jurors.

(a) In 1886, Justice Hall opined "[j]urors cannot impeach their verdict, and affidavits by members of the jury or of counsel as to their sayings after dispersing, cannot be received for that purpose." Nelling v. Indus. Mfg. Co., 78 Ga. 260(1). Although it is now settled law that a juror's affidavit will be allowed to explain a verdict in an attempt to sustain the same, nothing coming from the juror, either directly or indirectly, with respect to the manner in which a verdict was arrived at, will be heard to impeach the same. Bowman v. Bowman, 230 Ga. 395, 397(2), 197 S.E.2d 372. "That the verdict was caused by mistake, or a misunderstanding of the evidence, as disclosed by a member of the jury, will not be heard." (Emphasis supplied.) Id.; accord Bickford v. Bickford, 228 Ga. 353, 358-359(3e, f), 185 S.E.2d 756.

And, "[a]fter a verdict has been received and the jury have dispersed, a juror will never be heard to say that he did not agree to the verdict." Sims v. Sims, 113 Ga. 1083(1), 39 S.E. 435. Appellees' assertion that the affidavits in question are not impeaching in nature is without merit. An affidavit is impeaching in nature whether its effect is to attack directly or merely to undermine indirectly the legitimacy of a verdict. These affidavits attempt to establish a mistake as to the meaning of the court's instructions and have been tendered for the ultimate purpose of impeaching the $500,000 compensatory damage award. Compare Bowman, supra, and Bickford, supra.

(b) A trial court " 'has no legal power to receive or hear affidavits of jurors to impeach their verdict.' " Reece v. State, 208 Ga. 690, 691(1), 69 S.E.2d 92; compare Fidelity Nat. Bank v. Kneller, 194 Ga.App. 55, 59(1), 390 S.E.2d 55 (affidavits of five jurors not allowed to show another juror's bias and failure to communicate that information when queried on voir dire); Hilliard v. Arnold, 147 Ga. 15(1), 92 S.E. 634. "In passing upon a motion for new trial, the trial judge has no power to receive, hear, or consider affidavits of jurors submitted for the purpose of impeaching their verdict, though submitted without objection." Wellbeloved v. Wellbeloved, 209 Ga. 709, 711(4), 75 S.E.2d 424; see Bowman, supra 230 Ga. at 397(2), 197 S.E.2d 372; Swift v. S.S. Kresge Co., 159 Ga.App. 571(1), 284 S.E.2d 74. The order of the trial court unequivocally reflects on its face that the trial court considered the jurors' affidavits, and that "the import of their sworn statements is clear: the verdict they returned is not the verdict they thought they were returning." In view of the above precedent, we find the trial court abused its discretion in receiving and considering the affidavits of the 11 jurors, which in effect impeached their verdict on the grounds of a mistake as to the whether the jury or the court would subtract the $500,000 from any compensatory damage award.

3. Appellees, however, relying on Spencer v. State, 260 Ga. 640, 643(3), 398 S.E.2d 179, argue that goals protected by the provisions of OCGA § 9-10-9 are not absolute and that the statute cannot be applied in such an unfair manner as to deny due process. Spencer is a criminal case, and although it was interpreting OCGA § 17-9-41, which is identical to OCGA § 9-10-9, we recognize that the necessity for protection of jurors from harassment or other unlawful inducement, the need for certainty of verdicts, the need to foster open jury discussion, and the need to insulate jury value judgments from judicial review, will be compelled to yield in certain very limited occasions where human life or liberty sways in the balance. But such compelling personal interests of life and liberty rarely are at issue in civil litigation and are not so at issue in this case. Nevertheless, assuming the dictates of OCGA § 9-10-9 are no longer to be applied in bright-line fashion, we are satisfied that this is not a case meriting departure from a rule that has ably assisted in protecting the integrity of our jury system for more than a century.

In entering its order the trial court relied upon the precedent of Setzer v. Latimer, 40 Ga.App. 247, 149 S.E. 281. Setzer, a case decided in 1929, is an anomaly, as expressly reflected on the face of the decision, as follows: "While we entertain no doubt of the justness and correctness of the judgment herein rendered by this court, we do not wish to relax the general rule that jurors can not impeach their own verdict, and therefore deem it not amiss to say that the judgment here rendered is based on the particular facts of this case, taking into consideration the irregularity in the form of the verdict, the ambiguity of the question and the answer which constituted the verdict, the pleadings...