Pilkenton v. Eubanks

• Decision Date: 28 September 1976
• Docket Number: No. 52651,No. 3,52651,3
• Citation: 229 S.E.2d 146,139 Ga.App. 673
• Court: Georgia Court of Appeals
• Parties: Harvey PILKENTON et al. v. R. J. EUBANKS

Page 146

229 S.E.2d 146

139 Ga.App. 673

Harvey PILKENTON et al. v. R. J. EUBANKS.

No. 52651.

Court of Appeals of Georgia, Division No. 3.

Sept. 28, 1976.

Paul S. Weiner, Jonesboro, for appellants.

Beck, Goddard, Owen & Murray, Samuel A. Murray, Griffin, for appellee.

WEBB, Judge.

Mr. and Mrs. Pilkenton and their minor son sued Eubanks for injuries to person and property arising from an automobile collision. The jury returned a verdict of $4,000 for Mr. Pilkenton and $500 each for his wife and son, and this was made the final judgment of the trial court.

1. Appellants contend that the trial court erred in failing to charge on punitive and vindictive damages. Code §§ 105-2002 and 105-2003.

( a) The pre-trial order recites that appellants relied upon Code Ann. § 105-2003 as the sole basis for recovery of vindictive damages. Since this order was not modified it controls the subsequent course of the action. Code Ann. § 81A-116; Edwards v. Delvero, 139 Ga.App. 880 (229 S.E.2d 763) (1976). Appellants have failed to point out any evidence of aggravating circumstances warranting a charge on Code § 105-2002, nor did they request such instructions in writing as required by Code Ann. § 70-207 or object to the court's failure to charge at the conclusion of the evidence. This enumeration is without merit.

(b) 'Code § 105-2003 provides for damages arising from torts where the entire injury is to the peace, feelings or happiness. 'Entire injury' means there is no injury to the 'person or purse' in cases contemplated by this Code section, the tort being of such a nature as to give rise to mental pain and suffering only. Moreover, in such cases, a recovery is allowed only where there is a wilful and intentional tort.' Blanchard v. Westview Cemetery, 133 Ga.App. 262, 269(10), 211 S.E.2d 135, 141 (1974) (Judgment modified on other grounds, 234 Ga. 540, 216 S.E.2d 776 (1975)).

In this case Mr. Pilkenton testified in regard to property damage to his automobile, his injuries and physical pain and suffering, and his loss of wages and medical expenses. Mrs. Pilkenton testified as to her injuries and there was extensive testimony concerning the injury to the minor child. The court fully charged on all the appellants' rights of recovery and a charge on Code § 105-2003 as requested clearly would have been in error.

2. Error is assigned on the trial court's overruling appellants' motion for mistrial based upon a construction of certain evidence made by Eubanks' counsel in closing argument without rebuking counsel or properly instructing the jury to disregard the argument. The transcript reveals, however, that the judge did, at the time he overruled the motion, instruct the jury not to accept 'anything the attorneys say in their argument as being evidence, it is an argument, that is all it is, you are permitted to draw a reasonable inference upon the testimony you heard . . .' This was sufficient.

3. Appellants complain that the amount of damages awarded to Joseph Pilkenton, the minor child, was inadequate.

The evidence was that the child, who was fifteen months old at the time of the injury, had suffered from nightmares as a result of the collision. X-rays...