Price v. Whitley Const. Co., 35390

Citation91 Ga.App. 257,85 S.E.2d 528
Decision Date26 November 1954
Docket NumberNo. 35390,No. 2,35390,2
PartiesPRICE v. WHITLEY CONSTRUCTION COMPANY et al
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court.

The evidence does not demand a larger verdict than $4,000, although it might authorize a larger verdict. The court approved the verdict, and this court is without authority of law to disturb it.

Mrs. W. P. Price (hereinafter called the plaintiff) filed suit in the Superior Court of DeKalb County in the amount of $100,000, for personal injuries and pain and suffering occasioned while riding in a trackless trolley, which was suddenly struck from behind by a cement truck operated by Merelee Mack, an agent of Whitley Construction Company, (which we shall call the defendant). The jury returned a verdict for $4,000. The plaintiff filed a motion for new trial on the usual 3 statutory grounds, and thereafter added a ground numbered 4, alleging that the verdict was grossly inadequate. Thereafter the motion as filed was amended by adding a ground numbered 5, likewise alleging that the verdict was grossly inadequate, and then a ground numbered 6, which alleged:

'Because the following material evidence offered by movant was illegally withheld by the court from the jury against the demands of movant, as follows: While plaintiff was on the witness stand testifying in her own behalf, her counsel, Mr. Wilbur B. Nall, asked the following questions and the following transpired:

"Q. Now why did you leave Dr. Reith, Mrs. Price, leave his--A. I don't know of any way to answer that except by hearsay, as long as it came through what he told my husband.

"Q. Well, go ahead and explain why you did not go back to him. A. He had said he had done all he could do.

"Mr. Lokey. I'm going to object to anying she bases on what her husband may have said.

"The Court. All right.

"Mr. Nall. Your Honor, please, I think that we could show by her, say for the purpose of explaining her conduct in the matter why she did not go back to him.

"The Court. Well, I think I'll have to sustain the objection what he said. She can of course state what * * *.

"Mr. Cadenhead. (of counsel for plaintiff) We would like for the record to show that if Mrs. Price had been permitted to answer the question as to her reason for not returning to Dr. Paul Reith she would have testified that her husband told her Dr. Reith had told him that no further treatment could be rendered Mrs. Price, and that was her reason for not going back to him, that he had done all that he could do for her.'

'Movant avers as a part of this ground: (a) Movant offered the evidence while the plaintiff was on the stand testifying in her own behalf. (b) That the court ruled the evidence out and would not permit the same to be considered by the jury. (c) The evidence would have benefited movant, and its exclusion was hurtful and prejudicial to movant, for the reason that the doctor, Dr. Paul Reith, had testified in part as follows at the trial:

"Q. What sort of treatment did you prescribe for her? A. I had recommended that she continue with traction at home. I had also advised her about the fact that I thought she was more tense, more nervous that she was more so than should be normal. All I could do in this regard was to just put a seed into her thinking that I felt that temperament or nervousness had something to do with this and, as I say in her letter to me twelve days later, she stated at that time that she felt much better and felt that she had a lot less 'temperament' as she called it. I also recommended the physical therapy modalities, heat, massage. I did not recommend a neck brace.

"Q. How many times thereafter did you see her, Doctor? A. I saw her September--let's see. She left the hospital on September 2, 1951. I saw her on September 28, October 12, November 2, January 4, 1952, February 14, 1952. That was the last date I have record of seeing her.

"Q. When did you last see her with reference to her condition, I mean in giving her what you would call treatment? Was that on February the 14th? A. On February 14, 1952.

"Q. What did you do for her on that occasion, what treatment did you prescribe for her? A. On that last occasion there wasn't much in the way of treatment. That was a matter of talking about litigation.

"Q. You were discussing it with Mrs. Price about litigation? A. With Mr. Price and Mr. Nall, and at that time----

"Q. Which Mr. Nall was that, Mr. Walton or Mr. Wilbur Nall? A. Mr. Wilbur Nall.

"Q. Yes. A. And I told them at that time that I did not desire to enter into this case, that Dr. Brown and Dr. Britt were going to give a deposition. They had both seen her and treated her. I felt at that time that it was not necessary, I was not inclined to give a deposition. I told them I would review, I would be glad to review the depositions given by Dr. Brown or Dr. Britt and add any historical data that I might have had in my records relative to her case if I felt that these depositions were not inclusive of any specific data that I had.

"Q. Did you ever have those depositions brought to you for review? A. No, sir, I never went over those.

"Q. Prior to that time what was her condition, when you had seen her prior to this February 14th date? What was her condition as to progress that she had made from the time when you first saw her and then. Did she seem to be improving, getting over this thing, or what? A. Well, at first she did and then she seemed to have, she made continued complaint. In other words, her symptoms seemed intermittent. They would come and go.

"Q. Now did she show a general condition of improvement from August on up until about what point? A. Well, I think her own letter indicates that she felt that she was definitely improved upon leaving the hospital and for at least a few weeks after leaving the hospital.

"Q. What I mean, you gave some dates, additional dates you had seen her in the fall months threr? A. Yes, sir.

"Q. Did she on those occasions seem to be improving or not? A. Well, it seemed to me that at times she would seem improved. Then at times she would say that she still had the same pain that she had before.'

'(d) Dr. Paul Reith was offered as a witness on behalf of the defendants and testified in their behalf by deposition. (e) Plaintiff reoffered the aforementioned evidence after the testimony of Dr. Reith had been admitted, as detailed in this ground. (f) The evidence was material to the issues involved in the case for the following reasons: The conduct of the plaintiff in changing doctors and in not returning for further treatment to Dr. Paul Reith was an issue for consideration of the jury and what might be otherwise hearsay evidence is admissible under Code section 38-119 for the purpose of explaining conduct of a party where such conduct is a material issue in the case.' $A ground numbered 7 was also added as follows: 'Because the court erred in charging the jury as follows: 'I charge you, gentlemen of the jury, that where a party has evidence in his power and within his reach by which he may repel a claim or charge against him and omits to produce it, or having more certain and satisfactory evidence in his power, relies on that which is of a weaker and an inferior nature, a presumption arises that the charge or claim is well founded, but this presumption may be rebutted.'

'Movant avers that such charge was erroneous and injurious to her because: (a) It was confusing to the jury; (b) It was misleading to the jury; (c) There was no evidence that any witness was within the power of the plaintiff which was not equally accessible to the defendant by the use of the subpoena power; (d) There was no evidence in the record that any witness who might have given evidence on behalf of the plaintiff knew any facts or circumstance that was not otherwise covered by the evidence offered by the plaintiff; (e) There was no evidence that the plaintiff wilfully withheld or concealed or suppressed evidence concerning any issue in the case; (f) There was no evidence in the reocrd indicating that any evidence or circumstance within the knowledge of any witness within the power of the plaintiff was not the same as other evidence offered by the plaintiff during the course of the trial. (g) There was no evidence that the plaintiff was relying upon weaker or inferior evidence with regard to any fact or circumstance material to the case.

'As a part of this ground the following are facts averred to be material in connection with this ground: (1) At the opening of the trial, the rule of sequestration of witnesses was invoked. (2) Mr. W. P. Price, plaintiff's husband was thereupon asked to leave the court room with the other witnesses. (3) This occurred in the presence of the jury empaneled to try the case. (4) W. P. Price, plaintiff's husband, did not, in fact, testify during the course of the trial. (5) Hamilton Lokey, of counsel for defendants, read Code Section 38-119 to the court in the presence of the jury in his final argument, and asked the court to charge the jury thereon. (6) Hamilton Lokey, of counsel for the defendants, during the course of his argument of facts to the jury alluded to the fact that plaintiff's husband, Mr. W. P. Price, was present in court at the opening of the trial and had not testified.

'The giving of the charge complained of, so movant avers, created the impression with the jury, or was calculated to do so, that the court gave significance to the fact that the plaintiff's husband, though present in court and sent out of the court room when the rule for sequestration of witnesses was invoked and authorized it, the jury, to give weight to a presumption which, under the evidence and record in the case, did not, in fact or in law, exist.'

Further, the defendant denied all the material allegations of the petition. We will not here attempt to enumerate the evidence introduced at the trial, since it consists...

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9 cases
  • Service Merchandise, Inc. v. Jackson
    • United States
    • Georgia Court of Appeals
    • 27 Junio 1996
    ...the jurors would have been authorized to find in either the plaintiff's or the defendant's favor. See Price v. Whitley Constr. Co., 91 Ga.App. 257, 265(2), 85 S.E.2d 528 (1954). Parties are entitled to have a jury of their peers make that determination, and except in clear cases, the judgme......
  • A Child's World, Inc. v. Lane
    • United States
    • Georgia Court of Appeals
    • 29 Junio 1984
    ...least twice removed from appellee's mother. See Aycock v. State, 188 Ga. 550, 566(9), 4 S.E.2d 221 (1939); Price v. Whitley Constr. Co., 91 Ga.App. 257, 267, 85 S.E.2d 528 (1954); Johnson v. State, 130 Ga.App. 704, 705(4), 204 S.E.2d 302 (1974); Whitaker v. State, 133 Ga.App. 324, 211 S.E.2......
  • Murray v. Woods
    • United States
    • Georgia Court of Appeals
    • 18 Junio 1962
    ...amount claimed as special damages, was not so small as to justify an inference of gross mistake or undue bias.' Cf. Price v. Whitley Const. Co., 91 Ga.App. 257, 85 S.E.2d 528. 'It must also be kept in mind here that the court charged the principle of law with reference to the apportionment ......
  • Trammell v. Williams
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    • Georgia Court of Appeals
    • 28 Enero 1958
    ...or the inference will arise that their testimony would be unfavorable to the party who fails to produce them. Price v. Whitley Construction Co., 91 Ga.App. 257, 268, 85 S.E.2d 528; Beardsley v. Suburban Coach Co., 83 Ga.App. 381, 63 S.E.2d 911; Weinkle & Sons v. Brunswick & Western R. Co., ......
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