Shepherd Const. Co. v. Vaughn

• Citation: 88 Ga.App. 285,76 S.E.2d 647
• Decision Date: 27 May 1953
• Docket Number: Nos. 1,2,No. 34512,34512,s. 1
• Parties: SHEPHERD CONST. CO., Inc., et al. v. VAUGHN
• Court: United States Court of Appeals (Georgia)

Page 647

76 S.E.2d 647

88 Ga.App. 285

SHEPHERD CONST. CO., Inc., et al. v. VAUGHN.

No. 34512.

Court of Appeals of Georgia, Division Nos. 1, 2.

May 27, 1953.

Syllabus by the Court.

The verdict being authorized by the evidence, and no error appearing in the special grounds of the motion for new trial, the court did not err in denying a new trial.

Guy L. Vaughn brought a suit for damages sustained as a result of the operation of an asphalt mixing plant by the Shepherd Construction Company, Inc., and its employees, Cecil K. Taylor, George Montgomery, and Frank Montgomery, all of whom were made defendants to the suit. It was alleged in the petition, and admitted in the answer of the construction company, that the defendant company owned and maintained an asphalt mixing plant located about one-quarter mile southwest of the city limits of Barnesville, in Lamar County, Georgia, and that the defendant company had erected the plant in August, 1951, and had operated it continuously until April, 1952. It was alleged in the petition, and denied by the defendants in their answers, that the operation of the asphalt mixing plant by the defendants was a nuisance, in that the plant was located some 300 yards from the plaintiff's house and land, in a residential area, and, while in operation, put into the air quantities of dust, grit, and fumes which settled upon the plaintiff's land and inside his house, and thereby damaged his real and personal property, impaired his ability to work by causing him pain and suffering, and so affected his wife as to result in the loss of her services to him.

The petition contained a prayer for an injunction, and a temporary restraining order was issued to abate the alleged nuisance; but, by the time of the trial of the case, the asphalt plant had been dismantled and moved away, and the question of equitable relief was conceded to be no longer in the case.

The jury returned a verdict of $18,000 for the plaintiff against all four defendants. The defendants' amended motion for new trial was denied, and they except to that judgment.

Gambrell, Harlan, Barwick, Russell & Smith, Atlanta, Clifford Seay, Barnesville, for plaintiffs in error.

Kennedy & Kennedy, Barnesville, for defendant in error.

SUTTON, Chief Judge.

1. The defendants contend, in the first special ground of their motion for new trial, that the court erred in qualifying the jury panel as to their interest in American Automobile Insurance Company of St. Louis, over the objection that the policy of insurance was the only evidence of insurance coverage but was not produced, and that to qualify the jury in this respect would prejudice the defendants' position. The court stated, among other things, in its order refusing a new trial: 'In considering ground 1 of the amended motion, the court had had before it the record, attached to the transcript of evidence, of the hearing in chambers of the issue [of] whether or not the jury should be purged as to interest in the insurance company represented by Messrs. Gambrell, Harlan, Barwick, Russell & Smith, of counsel for the defendants; and this record is referred to and by reference made a part of this judgment. It appears therein that Mr. Cook Barwick, of that firm, phoned the court on the eve of his departure on a European vacation, that he was arranging his calendar with this trip in view, and that his firm represented an insurance company which was interested in this suit because of having issued a policy indemnifying Shepherd Construction Company against liability for personal injuries, but not against liability for property damage. Both items of alleged damage were claimed in this suit, and he wished to file an intervention in behalf of the insurer, asking that a lump-sum verdict be not returned in the case, but that the verdict rendered specify what, if any, damages were assessed for personal injuries and what amount, if any, for property damage, as otherwise his client could not know what its liability was. The court was unwilling to agree to this intervention without a hearing on the point, and referred Mr. Barwick to counsel for plaintiff. At the hearing in chambers, it was agreed that these facts might be stated by the court for the record.

'Mr. Kennedy, for plaintiff, also stated that Mr. Barwick then communicated with him, and he indicated his willingness, if his client concurred, to have the intervention filed and allowed.

'This intervention was not filed. Thereafter, Mr. George Smith, of the same firm as Mr. Barwick, appeared as counsel in the case, participating actively in its preparation by taking depositions, and in other ways; and at the trial, was present, admitting he represented the insurance company in question, and would appear as counsel in the trial of the case.' (Emphasis supplied.)

It was stated and ruled in Farrar v. Farrar, 41 Ga.App. 120, 152 S.E. 278: 'In a suit for personal injuries, where it is made to appear to the court, on private inquiry conducted out of the hearing of the jury, that the defendant is protected by liability insurance, and that the insurance carrier is thus pecuniarily interested in the result of the suit, and there is no proof submitted on behalf of either party to show the presence or lack of presence of employees or stockholders, or relative of stockholders, of the insurance carrier on the jury, it cannot be said as a matter of law that a request of the plaintiff to purge the jury with reference to the insurance carrier was submitted in bad faith and solely for the purpose of informing the jury that the defendant was protected by liability insurance. Nor can it be said that it was an abuse of discretion to so purge the jury.' Also see Atlanta Coach Co. v. Cobb, 178 Ga. 544(1), 174 S.E. 131; Rogers v. McKinley, 52 Ga.App. 161(3), 182 S.E. 805; Reynolds v. Satterfield, 86 Ga.App. 816, 72 S.E.2d 811.

Under the circumstances of this case, there was a strong probability that the insurance company was to some extent interested in the outcome of the case, and this was sufficient to authorize the trial judge to qualify the jury panel with respect to their interest in the insurance company.

2. Special grounds 2 and 3 have been abandoned. Complaint is made in special ground 4 that the court failed 'to inform the jury at all as to the rule for determining the damages claimed by the plaintiff for the loss of his wife's services for time in the future beyond the date of the trial,' and failed to instruct the jury that such damages must be reduced to present value. It was alleged in the petition that the plaintiff had permanently loss the services of his wife, of the value of $150 per month, as a result of the nuisance maintained by the defendants. The plaintiff testified that he had completely lost the services of his wife, as her cancer was aggravated by the dust from the asphalt plant, and that his wife had never recovered from her nervousness.

The court, in passing upon the motion for new trial, pointed out that the defendants made a written request for the following charge, which was given by the court: 'I charge you further, gentlemen, that the plaintiff is not entitled to recover in this action for any worry or pain suffered by his wife unless such was accompanied by actual physical injury done to his wife by the asphalt plant and then only if such worry or pain actually caused him to lose his wife's services, and then only to the extent and value of such services for the period lost. Further, such loss of services, in order to be the subject of recovery, must be the direct and proximate result of the operation of the asphalt plant, and the plaintiff may recover only for the loss of services so caused.' The defendants, by making this request, invoked the ruling that the plaintiff could recover the value of his wife's services for the period lost, whether that period was before the time of the trial, or afterwards, or both. They cannot now complain that the court failed to qualify and perfect the terms of their requested charge by adding to it the rule of reduction to present value of future damages.

3. The movants assign error upon the following portion of the charge of the court in special ground 5: 'If you find under the rule give you in charge that the plaintiff is entitled to recover, he would be entitled to recover reasonable compensation for such mental and physical pain and suffering as he experienced as a direct and proximate result of the injury sustained upon the occasion under investigation. The guide for the jury in determining compensation for mental and physical pain and suffering is the enlightened conscience of impartial jurors, acting under the sanctity of their oath to compensate the plaintiff with fairness to the defendant.

'If you find that the injury is permanent and likely to cause plaintiff future pain and suffering, and to impair in the future his ability to labor, you would also be authorized to consider those elements of damage; and, if you find any amount for such elements, you must reduce any amount so found for future impairment, if any, of his ability to labor, to its present cash value figured at the rate of seven per cent per annum. The guide for fixing damages, if any, for pain and suffering or diminished capacity to labor is the enlightened consciences of impartial jurors acting under the sanctity of their oath.

'Gentlemen, in this connection, certain tables have been introduced in evidence before you, known as mortality tables, which may be used by you in considering the life expectancy of the plaintiff, should you find that that was involved. These tables are not binding on you and you are not obliged to use them, but you may refer to them, if you wish, in considering this aspect of the case.'

The movants contend that this charge was erroneous and unsound as a matter of law, confusing and misleading to the jury, and incomplete in the following respects: (1) it failed to distinguish...