Rosenthal v. Hudson
| Decision Date | 01 July 1987 |
| Docket Number | No. 74214,74214 |
| Parties | ROSENTHAL v. HUDSON. |
| Court | Georgia Court of Appeals |
E. Marcus Davis, Atlanta, for appellant.
George G. Chenggis, Chamblee, for appellee.
Appellant and appellee were embroiled in a neighborhood dispute for several years. The dispute arose when appellant established a business in his house on the street through which traffic flowed to and from appellee's business. The employees of appellant's business parked their cars on the street, impeding traffic into and out of appellee's business premises. One of appellee's employees lived next door to appellant, and appellee would often go to that employee's home. Alleging that appellee was staring into his windows from the employee's driveway, appellant swore out a warrant for appellee's arrest for being a peeping Tom (OCGA § 16-11-61). When that warrant was dismissed by a magistrate, appellee filed a suit for malicious prosecution. Appellant counterclaimed for invasion of privacy and intentional infliction of emotional distress. This appeal is from a judgment entered on a jury verdict for appellee.
1. Appellant's first enumeration of error concerns the trial court's refusal to give a jury charge purportedly requested by appellant. Since there are no requests to charge contained in the record of this case, there is nothing to review in that regard. Rewis v. Browning, 153 Ga.App. 352 (7), 265 S.E.2d 316 (1980).
2. In his second enumeration of error, appellant complains of the trial court's admission into evidence of testimony calculated to arouse the jury's sympathy for appellee. The testimony involved was an explanation by appellee of his presence in his employee's driveway on a regular basis. Appellee explained that he went there to take the employee with him on his daily visits to his institutionalized retarded child. When appellant objected, the trial court noted that appellant had questioned appellee on the subject of his presence in the driveway, then instructed the jury that sympathy had nothing to do with the trial of this case.
As to appellant's relevancy argument, we find the language of Southern Bell, etc., Co. v. Coastal Transmission Svc., 167 Ga.App. 611 (4), 307 S.E.2d 83 (1983), to be appropriate: "
As to the sympathy objection, we note that after the trial court gave curative instructions, appellant's counsel thanked the court and did not pursue the issue. Upshaw v. Cooper, 127 Ga.App. 690(1), 194 S.E.2d 618 (1972).
3. Appellant questions the sufficiency of the evidence in his third enumeration of error. He centers his argument on the issue of probable cause for the procurement of a warrant for appellee's arrest, relying on Smith v. Ragan, 140 Ga.App. 33 (2), 230 S.E.2d 89 (1976), for the proposition that appellant's testimony that he consulted with a police officer prior to making the accusation establishes probable cause as a matter of law. In Smith, there was no evidence to counter the defendant's showing on motion for summary judgment that probable cause had existed. In the present case, however, there was ample evidence that the relationship between the parties was bitter and that appellant was motivated by malice rather than by a belief that a criminal law had been violated. Even when one seeks professional advice before swearing out a criminal warrant, the issue of probable cause is one for the jury. Bailey v. Century Fin. Co., 118 Ga.App. 90, 91, 162 S.E.2d 835 (1968).
4. Appellant next contends that the trial court erred in permitting the jury to return an "improper verdict" and in failing to thereupon declare a mistrial or direct a verdict for appellant. This enumeration of error refers to the jury's initial return of a verdict awarding appellee punitive damages only. After instructing the jury that punitive damages could not be awarded unless accompanied by an award of actual damages, the trial court ordered the jury to continue its deliberations and to determine whether appellee had suffered any actual damages before rendering its verdict.
It was not error to give the jury additional instructions and to have it reconsider its original verdict. Colonial Stores v. Fishel, 160 Ga.App. 739 (2), 288 S.E.2d 21 (1981). Nor was it error to fail to grant a mistrial or to direct a verdict since no motion for either relief was made. See McLemore v. Andrika, 121 Ga.App. 527 (2), 174 S.E.2d 371 (1970). Furthermore, since appellant's counsel stated, when asked, that he had no objection to the content of the trial court's additional instructions, he may not now raise such objections. Dept. of Transp. v. 2.734 Acres of Land, 168 Ga.App. 541 (2), 309 S.E.2d 816 (1983).
5. When the jury asked for a recharge on the meaning of the word "malicious," the trial court used a definition from Black's Law Dictionary: "wrongful and done intentionally without just cause or excuse." When appellant's counsel insisted that the concept of lack of probable cause be included in that charge, the trial court recalled the jury and modified the definition, leaving the jury with the definition, "wrongfully and done intentionally without probable cause." Appellant's counsel continued to except to the charge, contending that it was confusing. In light of the trial court's extremely thorough charge on probable cause and the recharge on the definition of "malicious," we find appellant's contention in that regard to...
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State v. Todd
...or more specific instructions, appellant acquiesced in the ruling and had no right to complain of it on appeal); Rosenthal v. Hudson, 183 Ga.App. 712, 360 S.E.2d 15, 17 (1987) (noting that a litigant cannot acquiesce in a ruling and then complain of the same on appeal); People v. Pollick, 4......
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Department of Transp. v. Petkas, s. 76525
...319 S.E.2d 470 (1984). Accordingly, I find no reversible error in the admission of this evidence. See generally Rosenthal v. Hudson, 183 Ga.App. 712(2), 360 S.E.2d 15 (1987). 4. The majority determines the jury's verdict must be reversed because the trial court excluded the DOT's "quantifyi......
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Parks v. State
...issue at trial. Any evidence which bore upon that issue directly or indirectly was admissible. OCGA § 24-2-1; Rosenthal v. Hudson, 183 Ga.App. 712, 715(9), 360 S.E.2d 15 (1987). Despite defendant's argument to the contrary, the physical reactions of a person do not amount to an opinion of t......
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Moss v. Hall County Bd. of Com'rs, A90A0741
...judice as lacking in probative value on the issue of the value of the property, therefore it was properly admitted. Rosenthal v. Hudson, 183 Ga.App. 712(2), 360 S.E.2d 15. Judgment SOGNIER, J., concurs. CARLEY, C.J., concurs specially. CARLEY, Chief Judge, concurring specially. I do not dis......