Ray v. Stinson

• Decision Date: 14 November 1984
• Docket Number: No. 68628,68628
• Court: Georgia Court of Appeals
• Parties: RAY v. STINSON et al.

Page 506

324 S.E.2d 506

172 Ga.App. 718

RAY v. STINSON et al.

No. 68628.

Court of Appeals of Georgia.

Nov. 14, 1984.

Rehearing Denied Nov. 26, 1984.

Certiorari Granted Jan. 8, 1985.

Jerry B. Hatcher, Atlanta, for appellant.

Frank J. Klosik, Jr., H. Edward Marks, Jr., Atlanta, for appellees.

McMURRAY, Chief Judge.

Plaintiff, Nancy S. Ray, brought this negligence suit against defendants, Barbara Jo Stinson and Ruby Rainey, for injuries she sustained when an automobile in which she was riding collided with another automobile driven by defendant Stinson and owned by defendant Rainey (Stinson's mother). Following a trial, the jury returned the following verdict in favor of the plaintiff: "We, the Jury, find in favor of the Plaintiff, Nancy S. Ray, and against the Defendants in the amount of: (a) $10,000, special damages (past medical expenses and lost wages); (b) $ 0 , pain and suffering (past, present and future--mental and physical); (c) $ 0 , future medical expenses." Based upon this verdict, the court entered judgment thereon in the amount of $7,215, deducting from the $10,000 figure the sum of $2,785 in no-fault benefits that plaintiff had previously received under her automobile insurance policy. (This deduction of no-fault benefits paid to plaintiff had been agreed upon by the parties prior to trial).

Subsequently, on February 9, 1983, the plaintiff filed a motion for new trial contending that the verdict of the jury and judgment entered thereon is "contrary to the evidence, ... strongly against the weight of the evidence, ... totally illogical and inconsistent, [and] ... undoubtedly the product of gross mistake or undue bias." The trial court, after considering the evidence, denied plaintiff's motion for new trial, and it is from this denial that plaintiff appeals. Held :

1. Plaintiff enumerates as error the trial court's denial of her motion for new trial, asserting that the verdict of the jury and judgment entered thereon is "totally illogical and inconsistent, ... not supported by the evidence, ... so grossly inadequate, illogical and unjust ... so as to shock the moral conscience and senses [and] can only be seen as the product of gross mistake or undue bias and prejudice." We disagree.

A. Special Damages. The evidence in the record reflects and in fact the plaintiff admits that the jury awarded her an amount returning all of her special charges, plus sums for "special damages beyond that proven in the case." (Specifically, the evidence reflects that the plaintiff incurred medical expenses for treatment of her broken right ankle of $277.98; that she incurred medical expenses for treatment of her rheumatoid arthritis to the time of trial of $5,390.26; and that she had lost wages of, at most, $800). As to this excess amount, plaintiff may not be heard to complain that the verdict is for a greater amount than that which she was entitled to recover. It is a well settled matter that a party is not entitled to a new trial because of an error in his favor. See Campbell v. Alford, 155 Ga.App. 689, 690(2), 272 S.E.2d 553; Pullman Co. v. Schaffner, 126 Ga. 609, 615(4), 55 S.E. 933.

B. Pain and Suffering. Plaintiff contends that there is no evidence in the record to show that she did not sustain personal injuries; nor is there evidence, plaintiff contends, to show that she did not suffer and will not in the future continue to suffer on account of these injuries. To this end, plaintiff argues that by awarding no amount for pain and suffering the verdict is so grossly inadequate as to justify an inference of gross mistake or undue bias (in this regard, see OCGA § 51-12-12). Plaintiff further argues that the verdict is "illogical and inconsistent" given the fact that she was awarded an amount for "special damages beyond that proven in the case," but awarded no amount for pain and suffering. We disagree.

There is no measuring rod for pain and suffering. It is an element of general damages that is a matter for the enlightened conscience of the jury, and absent evidence of bias and prejudice the verdict will not be overturned by this court on the ground of inadequacy. Redd v. Peters, 100 Ga.App. 316(1), 111 S.E.2d 132. See also Fargason v. Pervis, 138 Ga.App. 686, 687(2), 227 S.E.2d 464. Here, even though the jury awarded no amount for pain and suffering, we find no indicia of bias and prejudice for contrary to the plaintiff's assertions on appeal, the evidence was such as to authorize a charge on the principles of comparative negligence. See generally Powers v. Pate, 107 Ga.App. 25, 27(1), 129 S.E.2d 193; Davis v. Hammock, 123 Ga.App. 33, 35(3), 179 S.E.2d 283. "When the rule concerning comparative negligence is involved in a case, the verdict of the jury cannot be set aside on the ground that the amount of the damages awarded is inadequate. [Cits.] ..." Powers v. Pate, 107 Ga.App. 25, 27, 129 S.E.2d 193, supra.

Moreover, even though the jury's verdict specifically showed that no amount for pain and suffering had been awarded to plaintiff, in light of the fact that the jury awarded to plaintiff an amount for "special damages beyond that proven in the case," we are of the opinion that the jury verdict could have included in the...